United States v. Tashena Crump

United States Court of Appeals For the Eighth Circuit ___________________________ No. 24-3453 ___________________________ United States of America Plaintiff - Appellee v. Tashena Lavera Crump Defendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota ____________ Submitted: December 19, 2025 Filed: June 30, 2026 ____________ Before LOKEN, LAVENSKI R. SMITH, and KOBES, Circuit Judges. ____________ LAVENSKI R. SMITH, Circuit Judge. A jury convicted Tashena Lavera Crump of wire fraud and conspiracy to commit mail fraud for participating in a scheme to fraudulently sell magazine subscriptions. Crump appeals, arguing that (1) there is insufficient evidence to support her convictions; (2) the district court 1 abused its discretion in instructing the jury on the elements of wire fraud; and (3) the district court erred in denying her motion for dismissal or a new trial based on alleged discovery violations. We affirm. I. Background 2 The present case concerns “a nationwide conspiracy to defraud individuals by representing that the coconspirators would renew or reduce the cost of existing magazine subscriptions and instead sign victims up for new subscriptions.” R. Doc. 2307, at 2. Telemarketing company owner Rusty Rahm came up with the idea of fraudulently selling the “renewals,” R. Doc. 2026, at 136, known as “paid during service” (PDS) sales, id. at 135. The scheme involved two interrelated enterprises. Lead list brokers would acquire and sell contact lists of potential targets of the scheme. Telemarking call centers would then contact the targets and entice subscription holders to purchase new magazine subscriptions through prewritten deceptive dialog. See R. Doc. 2307, at 2. Brian Williams owned Readers Club Home Office (RCHO), also known as Pacific Renewal Service, a Minnesota-based telemarketing company. Between approximately 2007 and 2020, RCHO was using a “price reduction” sales pitch to sell magazines. R. Doc. 2034, at 212. Williams used a short script in which he represented that he was “calling to check upon the service of your magazines” and was not selling anything “new.” R. Doc. 2029, at 48. This pitch was a “lie.” Id. A written script recovered from the RCHO office read: Hello (Customer Name)? Hi, my name is (your name) with Pacific Renewal Service, the folks that send out Magazines, how are you today? Wait for customer to respond! We were just calling to check up 1 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota. 2 “We recite the facts in the light most favorable to the verdict.” United States v. Kirkendoll, 61 F.4th 1013, 1015 (8th Cir. 2023). -2-  on the magazines, was everything arriving on time and in good condition for you? Wait for customer to respond! Great, we wanted to help you by keeping you at OUR lowest price today, just the $14.95 a month, that sounds better on the budget, right? Wait for customer to respond! I’m a little bit new here so I am just going to update some information with you and have my supervisor hop on the line, just to make sure I did my job correctly. **I have your address as (verify entire address, including city, State and zip code), is that correct? Wait for customer to respond! **If address is incorrect, get new address. **Can I verify your age, how young are you? (18–75) **Are you married, or single? **What type of work are you doing out there, what’s a job title for you? (IF MARRIED, BUT NOT GETTING INCOME, ASK WHAT KIND OF WORK THEIR SPOUSE DOES, MUST GET A JOB TITLE) **Do you rent or own where you live? **Lastly, which major debit or credit card do you use the most? VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER? (Must have a credit card to transfer) Great! I am going to have my supervisor hop on the line to make sure I have done everything correctly for you. If you could slip in a good word for me, let him/her know I was nice and polite with you? Thank you, hold one moment please! Gov’t Ex. E35, at 2 (emphases in original). RCHO also had written rebuttals following its script. For example, if the customer asked “[w]hat am I paying now,” the telemarketer was to respond: It just shows me here you are making a full price payment, I am very new and they don’t give me access to that information. The purpose of -3-  my phone call is to keep you at our lowest price just $14.95 a month until everything does end, that sounds better on the budget, right? Id. at 4 (underline omitted). In 2010, Williams hired Crump as an RCHO telemarketer. Crump was not provided with a written script from which to read; instead, she learned the sales pitch from listening to other telemarketers. After working as a telemarketer for a few months, Crump moved to collections. During her time as a telemarketer or collector, Crump was associated with 173 transactions for RCHO. In 2011, Crump was promoted to general manager. Crump “essentially ran the office” and “handled all the day-to-day operations.” R. Doc. 2034, at 212. This included “pay[ing] bills, oversee[ing] the sales room, collections, PS Online [a customer relation management system 3], [and] all the things that went along with running a magazine company.” Id. at 213. By 2016, a severe drug addiction kept Williams from the office “for weeks at a time[].” R. Doc. 2040, at 211. As general manager, Crump handled leads for RCHO, including buying, trading, and selling telemarketing lead lists. Daniel Klibanoff was a lead list broker who had a “home office in Asheville, North Carolina.” R. Doc. 2031, at 123. Lead list brokers “would buy and sell lists of vulnerable individuals with existing magazine subscriptions, and telemarking call centers . . . would execute the fraud.” R. Doc. 2307, at 2. Klibanoff described Crump as Williams’s “right hand” who was “very much a part of making sure that everything came together so the fraud could be perpetrated, having the leads on the right days.” R. Doc. 2031, at 39. Crump would complain to Klibanoff “[i]f there were problems with the leads.” Id. On several occasions, Crump emailed Klibanoff with inquiries and complaints about lead lists. 3 Id. at 186. -4-  The record contains email conversations dating from May 2016 through October 2019 between Crump and Klibanoff and Crump and John Harbert, a lead list broker from New Mexico. These conversations, admitted into evidence through government exhibits, established that Crump knew of the falsity of the representations in the telemarketing scripts and purposely participated in the targeting of vulnerable persons for calls through the exchange of lead lists. See, e.g., Gov’t Ex. F46; Gov’t Ex. F65; Gov’t Ex. F71; Gov’t Ex. F78; Gov’t Ex. F101; Gov’t Ex. F115; Gov’t Ex. F127; Gov’t Ex. F131; Gov’t Ex. F133; Gov’t Ex. F136; Gov’t Ex. 140; Gov’t Ex. F142; see also R. Doc. 2031, at 47, 49; R. Doc. 2033, at 111. Crump also coordinated the sharing of PDS lead lists between RCHO and two other companies that Williams had agreed to share leads with. According to Jared Michelizzi, the owner of telemarketing companies based out of Minnesota and California, he traded lead lists with Crump “several times a month” or “at least” “[a] couple times a month.” R. Doc. 2034, at 216. These lead lists “came from the lead brokers,” such as Klibanoff. Id. Michelizzi sent “Klibanoff leads” to Crump. Id. When Michelizzi received leads from Crump, he would “call that same lead list.” Id. He did so with the understanding that either “RCHO had already called that lead list” or they “would be calling it at the same time.” Id. According to Michelizzi, “Crump knew that [they] were both calling the same people.” Id. at 216–17. Michelizzi based his knowledge on the operation’s standard procedures with lead lists. Michelizzi also frequently discussed with Crump “how various lead lists were performing.” Id. Additionally, emails dating from July 2011 through January 2015 show that Crump coordinated the sharing of PDS lead lists with Wayne Dahl’s Minnesota- based telemarketing company. These conversations, also admitted through government exhibits, show Crump referring to PDS lead lists as, for example, “fire” and “good stuff.” See, e.g., Gov’t Ex. F1; Gov’t Ex. 49; Gov’t Ex. F2; Gov’t Ex. F3; Gov’t Ex. F8; Gov’t Ex. F9; Gov’t Ex. F10; Gov’t Ex. F44; see also R. Doc. 2033, at 116. -5-  James Sierra, the manager of a telemarketing company in Arizona, also provided lead lists to Crump after she contacted him. The only type of lead list that Sierra had “were PDS leads.” R. Doc. 2032, at 213. Crump knew that RCHO was suspected of fraudulent activity. While Crump was RCHO’s general manager, agencies from two states investigated RCHO for fraudulent practices. In 2014, Wisconsin filed a complaint alleging that “[a]s part of their telemarketing, RCHO used a deceptive and misleading sales script. The RCHO script led Wisconsin residents to believe that a magazine company they currently had an agreement with was the entity who was calling them concerning their magazine subscriptions.” R. Doc. 2040, at 94. Crump was aware of and admittedly read “some of” the complaint. Id. at 263. RCHO entered a consent judgment with Wisconsin. Crump was aware of the consent judgment. She signed it “as a notary.” Id. at 262. In 2015, Minnesota launched its investigation into RCHO’s fraudulent practices. Crump met with Williams and Michelizzi “about the [Minnesota] Attorney General investigation” “three days” after it became public. R. Doc. 2034, at 192. Crump, Williams, and Michelizzi agreed to modify the script to send to the Minnesota Attorney General because the one they had been using was not “compliant.” Id. at 218. Ultimately, the script that RCHO provided to Minnesota contained a “legal disclaimer”; however, RCHO had not used the modified script. See R. Doc. 2040, at 268–69. RCHO also received numerous consumer complaints. Some of these complaints came from state consumer protection agencies or the Better Business Bureau (BBB). Several complaints were found in Crump’s office or were sent to her email. One of the complaints found in Crump’s office described the very fraud that Crump was charged with perpetrating. It read, “This company tricked me into subscribing to their magazine service. When I tried to cancel, they wouldn’t let me. Then they deceived me by telling me they would lower my monthly payment.” R. Doc. 2039, at 171. The complaint continued, stating, “What they actually did was -6- open another account and are now charging me for that too.” Id. Another complaint read, “I was contacted by Pacific Renewal Services over a year ago, posing as representatives of the magazines that I currently had subscriptions with, but which were ending soon.” Id. In addition to the complaints found in Crump’s office, “documents related to charge-back rebuttals” were located “in Ms. Crump’s desk.” R. Doc. 2038, at 197. A chargeback is when a customer disputes a charge with his or her credit card company or banking institution. The merchant is then “made aware that . . . the money was going to go back to the customer, as opposed to the company getting the money.” Id. Williams “develop[ed] . . . a complaint sharing system between [Michelizzi], Williams,] and Wayne Dahl, because at some point [they] were all getting similar leads.” R. Doc. 2034, at 219. At Williams’s direction, Crump would notify Michelizzi of a consumer complaint; Michelizzi reciprocated. “[M]ore than half the time” Michelizzi would have “the same person in [his] database . . . who Ms. Crump shared had complained.” Id. at 220. “[T]he purpose of this complaint sharing system” was to “get rid of problem people.” Id. Williams also hired compliance companies “to create the appearance of legitimacy.” R. Doc. 2029, at 165. When Dahl asked Williams why he did so, Williams replied, “[I]f they . . . look at my company or I ever get into a pinch, I can say that I’ve done all this, and I’m doing everything a legitimate way.” Id. In 2011, RCHO hired CompliancePoint to assess its compliance with telemarketing laws. Crump was CompliancePoint’s “primary point of contact.” R. Doc. 2040, at 31. CompliancePoint conducted an onsite visit of RCHO in December 2011. Before this visit, CompliancePoint sent RCHO “a list of departments that [it] . . . need[ed] to interview.” Id. at 75. In particular, CompliancePoint wanted to speak with business unit managers, legal personnel, training personnel, and personnel involved in call center operations. But when CompliancePoint consultants arrived at RCHO, “the office was empty.” Id. at 77. Only Crump was in the office for the on-site visit. Because the telemarketers were not present, the consultants never heard a telemarketer on the phone or witnessed their sales pitch. -7-  Crump provided CompliancePoint with scripts for it to review. These scripts were “[n]oncompliant.” Id. at 50. Crump sought advice from CompliancePoint on how to improve the scripts. When CompliancePoint sent back the scripts, it did not alter RCHO’s sales pitch because sales language was outside the traditional scope of its work. But CompliancePoint advised RCHO in writing that “[f]ederal law . . . requires a prompt statement of the purpose of the call, the nature of the goods or services offered and a statement that no purchase is necessary to win a prize or gift (only if a prize or gift is offered).” Id. at 88. Further, it advised RCHO that “[f]ederal and state law also bar deception and misrepresentation in all scripts.” Id. at 89. Thus, CompliancePoint advised “Crump that [RCHO] telemarketers cannot engage in deception.” Id. Despite this advice, RCHO sales scripts were never modified to include a prompt statement of the purpose of the call or request the customer’s explicit approval to sign up for a new magazine subscription. RCHO retained CompliancePoint for assistance with state telemarketing registration and other services until 2019. From 2011 to 2019, CompliancePoint obtained information about RCHO from Crump. Crump never disclosed to CompliancePoint that RCHO “telemarketers [were] calling new customers without disclosing that they were, in fact, a new magazine company,” that RCHO telemarketers were calling “customers with existing magazine subscriptions with a different company, and representing themselves as calling from the customer’s current magazine provider,” or that RCHO was “billing customers for new magazine subscriptions without getting those customers’ explicit approval to do so.” Id. at 79. Nor did Crump speak with CompliancePoint about any of the customer complaints that RCHO had received, including complaints from the BBB or state attorneys general. On February 19, 2020, federal law enforcement executed a search warrant at RCHO. “The warrant authorized the government to seize evidence related to the telemarketing fraud scheme, including emails, computers, and other digital devices.” R. Doc. 1846, at 2. Law enforcement seized various electronic devices from RCHO. “Although the search warrant authorized the government to seize emails related to -8- the telemarketing fraud scheme, the government did not find bulk emails on the computers it seized during the search of RCHO.” Id. This was because RCHO used Google, a third-party service provider, to store its emails remotely. The government never obtained a separate search warrant for Crump’s Google email account so that it could seize data from the internet.4 Nonetheless, it obtained more than a thousand of Crump’s emails from searching other coconspirators’ email accounts. In October 2020, Crump, along with 43 others, was charged with conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1349 and 2326. She was also charged with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2326. In early 2021, the government provided a “‘second round of rolling discovery’ and noted in a summary spreadsheet that it had the devices from Crump’s workplaces.” R. Doc. 2425, at 2. In a follow-up letter to defense counsel, the government explained that “[d]ue to the large number of devices, the government [did] not cop[y] all of the devices.” Id. (citing Gov’t Decl., Ex. 3 at 2). But it advised that “[t]h[e]se electronic devices are available for inspection or copying upon request. Please let us know if you would like to inspect or receive copies of any of these electronic devices.” Id. at 2–3 (quoting Gov’t. Decl., Ex. 3 at 2). “Two years later, in July 2023, Crump took the government up on its offer and requested access to all digital evidence seized from RCHO.” Id. at 3. In response, “[t]he government provided Crump with two discs that it said ‘contain the forensic images of the electronic devices seized from the RCHO office.’” Id. (quoting March Fisher Decl., Ex. E). In actuality, “the discs produced in July 2023 did not contain ‘the forensic images of the electronic devices, but rather the logical copies of the network drives of those devices that were on the discs.’” Id. at 4 (quoting R. Doc. 2378, at 5). As a result, “only contents stored on shared network drives were 4 According to the government, it did not seek a search warrant for her email account because warrants for Google accounts using a domain name other than “gmail.com—such as Crump’s email of shena@readersclubinc.com—[are] often met with a response from Google to go to the organization—in this case RCHO— for the contents of the account.” R. Doc. 1846, at 3 n.1. -9- produced, while any content saved locally to the 21 devices was not.” Id. This meant that “of the more than 55,000 documents since recovered from the 21 devices, only around 3,000 were included in the July 2023 production.” Id. On September 12, 2023, a few weeks prior to trial, Crump requested “to ‘examine the computers seized during the search and for which [she] received forensic images’” based on her “concern[] that not all information from the computers ha[d] been made available to [her].” Id. at 3 (quoting March Fisher Decl., Ex. F at 3). Crump asked to “see how files were arranged on the computers but did not ‘want to otherwise access, open, or examine the files’” based on her “understanding that the contents of all files from the forensic examination of the computers ha[d] already been provided to [her].” Id. In response, the government stated that “once the computers are turned on and accessed, it’s no longer a forensic review because it no longer maintains the original form and function as the time the device was seized.” Id. (quoting March Fisher Decl, Ex. G at 2). The government noted that it could “pass along any ‘specific question[s]’ to the FBI forensic team.” Id. at 4 (alteration in original) (quoting March Fisher Decl., Ex. G at 2). Thereafter, “Crump ceased her efforts to obtain access to the computers.” Id. The contents of Crump’s emails and access to them became a major point of contention prior to trial and into the trial. Crump learned that Google had deleted her RCHO email account in August 2022. On September 18, 2023, Crump filed a “Motion for Relief from Failure to Search and Preserve Emails.” R. Doc. 1811. Crump alleged that “[t]he [g]overnment’s failure to search and preserve the emails violated Brady[5] and its progeny.” Id. at 8. She also argued that the government’s failure to preserve and disclose her emails “violate[d] [the district] [c]ourt’s orders and Federal Rule of Criminal Procedure 16.” Id. at 10. She suggested that “the most appropriate sanction” for the Brady violation was “dismissal” of the indictment. Id. at 14. In response, the government argued that it never possessed Crump’s emails, was prohibited from searching Crump’s RCHO emails by accessing her open Google 5 Brady v. Maryland, 373 U.S. 83 (1963). -10- account without a separate search warrant authorizing such search, and had no obligation to seek a separate warrant to obtain Crump’s emails. The government also disputed Crump’s claim that her RCHO emails were exculpatory. Following a pretrial hearing, the court denied the motion. It concluded that “[t]he government had no obligation to execute search warrants on Crump’s behalf; its sole obligation was to turn over exculpatory evidence in its possession.” R. Doc. 1970, at 3. The court concluded that Crump failed to credibly allege that “the government violated that duty, []or . . . destroyed any evidence.” Id. Trial commenced on October 9, 2023. During trial, the district court granted Crump leave to file a renewed motion based on evidence adduced at trial on October 20, 2023. In the renewed motion, Crump alleged that the evidence showed that the government did have possession of her emails and had possibly reviewed them. The same day that Crump filed her renewed motion, the government discovered that discs provided to Crump in July 2023 failed to include complete copies of the RCHO devices, as the government had previously represented. The government immediately notified Crump and provided her with forensic images of the devices. Crump thereafter raised this additional discovery issue with the district court. The district court denied Crump’s renewed motion. First, as to Crump’s emails, the court determined that the government did not possess Crump’s emails “simply because it [was] in sight while law enforcement execute[d] [the] search warrant.” Id. at 5. Because the government did not possess Crump’s emails, the court concluded that the government did not violate Brady when it failed to preserve and produce them. Additionally, the court found that Crump “provided scant evidence beyond allegations that the emails contained exculpatory content.” Id. at 7. “Though now unavailable,” the court explained, “Crump had two years to log in to her email account and download content, or, if that was not an option, to subpoena the content from Google.” Id. -11-  Second, as to the discovery violation, the court found that the government’s Rule 16 violation did not result in prejudice that warranted dismissal of the charges. Instead, the court determined that the “appropriate remedy [was] to forbid the government from introducing or otherwise using any of the undisclosed materials without prior permission from the [c]ourt.” Id. at 8. Importantly, the court indicated that “Crump should have time to review the files before presenting her defense, if she chooses to do so.” Id. (emphasis added). Crump, however, chose not to request additional time to review the files. After the government rested its case on October 31, 2026, Crump moved for judgment of acquittal. She did not dispute the existence of a fraud conspiracy; instead, she argued that the government produced insufficient evidence of her “knowledge of a voluntary agreement to join a conspiracy and . . . intent to defraud.” R. Doc. 2040, at 9. The district court denied the motion. Crump testified in her own defense. She admitted that a fraud conspiracy existed but denied knowing about the fraud. She testified that she was “[f]ooled by Brian [Williams].” Id. at 203. After the close of all evidence, the court held a charge conference to discuss the proposed jury instructions. Prior to trial, Crump had submitted proposed jury instructions on wire and mail fraud that differed from the court’s proposed instructions. Crump’s proposed instructions provided, in relevant part, that “a material false statement is not alone sufficient to convict a defendant [of] wire [or mail] fraud. There must also be an unlawful deprivation of property.” R. Doc. 1776, at 34; see also id.at 39. The district court rejected Crump’s proposed instruction. The jury found Crump guilty on all counts. Post-trial, Crump “continue[d] to investigate devices seized from RCHO, the contents of which were not fully produced by the government.” R. Doc. 2307, at 19. In addition, she moved for judgment of acquittal or new trial. In her motion, Crump repeated her earlier argument that while there was a nationwide conspiracy, she was -12- not privy to it and did not join it. The district court concluded that sufficient evidence existed that Crump “conspired with Brian Williams to run RCHO. And she conspired with others outside RCHO to buy and sell lead lists and further the fraudulent scheme, including at minimum, testifying codefendants Wayne Dahl, Daniel Klibanoff, James Sierra, and Jared Michelizzi.” Id. at 6. Crump next argued that insufficient evidence existed that she committed mail and wire fraud because “the scripts used by RCHO were literally true.” Id. at 10. The court disagreed, concluding that “[a]ny reasonable person would assume that a telemarketer calling to check up on ‘the magazines’ and ‘keep[]’ the recipient at a low price was the recipient’s current magazine provider.” Id. (alterations in original). The court found that “Crump’s actions at RCHO were ‘reasonably calculated’ to trick victims into thinking they were talking to their current magazine providers and not signing up for new subscriptions.” Id. Crump additionally argued that “her engagement of CompliancePoint [was] inconsistent with an intent to defraud.” Id. at 11. The court rejected this argument, noting that Crump had “repeated that point ad nauseam to the jury, and the jury rejected that inference.” Id. The court cited testimony “that compliance firms were used as a would-be get out of jail free card, to give their operations a veneer of legitimacy. The intent was to provide cover, not to ensure she was not perpetrating fraud.” Id. The court also cited testimony “that Crump withheld numerous pieces of information [from CompliancePoint] that would have been ‘red flags’ had she properly disclosed them.” Id. Finally, the court rejected Crump’s argument that RCHO sending its victims magazines necessitated a different instruction for mail and wire fraud. The court explained, “It would create an untenable loophole in the federal fraud statutes to allow individuals to make material misrepresentations attempting to deprive others of their money simply because a defendant provides some nominal good or service in return.” Id. at 17. The court denied Crump’s motion for judgment of acquittal and parts of her motion for a new trial. But because of the “ongoing investigation . . . on potential -13- discovery and Brady issues,” the district court “reserve[d] judgment” on the portion of Crump’s motion for new trial or dismissal concerning potential discovery and Brady violations. Id. at 19. It afforded her time “to file a supplemental brief when her review of the devices [was] complete.” Id. In June 2024, Crump filed briefing and a supporting declaration identifying allegedly exculpatory evidence from the RCHO devices. Thereafter, the district court denied the remaining portion of Crump’s motion for a new trial or dismissal. The court determined that the government “inadvertently suppressed favorable evidence” but that “Crump was not prejudiced by the incomplete production of the RCHO devices.” R. Doc. 2425, at 6. II. Discussion On appeal, Crump argues that (1) there is insufficient evidence to support her convictions; (2) the district court abused its discretion in instructing the jury on the elements of wire fraud; and (3) the district court erred in denying her motion for dismissal or a new trial based on alleged discovery violations. A. Sufficiency of the Evidence First, Crump challenges the district court’s denial of her motion for judgment of acquittal. She argues that insufficient evidence supports her fraud and conspiracy convictions because RCHO “did not misrepresent its identity and the products it was selling to potential customers” or “actively conceal this information.” Appellant’s Br. 28. She also asserts that insufficient evidence exists that she “knowingly agreed to the conspiracy alleged in the [i]ndictment, given the substantial variations between the practices at her employer and those of other companies run by people totally unlike her, namely serial fraudsters and criminals.” Id. We apply de novo review to the district court’s denial of Crump’s motion for judgment of acquittal. United States v. Earth, 984 F.3d 1289, 1300 (8th Cir. 2021). “We apply the same standard of review to the district court’s ruling on a motion for judgment of acquittal as we do to a sufficiency of the evidence challenge.” Id. -14- (quoting United States v. Clark, 668 F.3d 568, 573 (8th Cir. 2012)). We view the evidence “in the light most favorable to the verdict” in “consider[ing] whether a rational jury could have found the elements of the offense beyond a reasonable doubt.” Id. (quoting United States v. Owens, 966 F.3d 700, 708 (8th Cir. 2020)). Reversal is warranted “only if no reasonable jury could have found the accused guilty beyond a reasonable doubt.” Id. (quoting United States v. Two Eagle, 318 F.3d 785, 790 (8th Cir. 2003)). The jury convicted Crump of conspiracy to commit mail fraud and three counts of wire fraud. The elements of mail fraud and wire fraud “are virtually identical.” United States v. Louper-Morris, 672 F.3d 539, 555 (8th Cir. 2012). The elements of mail fraud are as follows: “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) that the mail was used in furtherance of some essential step in the scheme.” Id. (citation modified). To establish that Crump conspired to commit mail fraud, the government had to prove that “1) there was a conspiracy, an agreement to commit [mail] fraud; 2) [Crump] knew of the agreement; and 3) [she] intentionally joined in the conspiracy.” Id. For Crump to be guilty of wire fraud, the government had to prove that “1) [Crump] joined a scheme to defraud; 2) [she] intended to defraud; 3) it was reasonably foreseeable that interstate wire communications would be used; and 4) the wires were, in fact, used.” Id. at 556. 1. Scheme to Defraud Crump first argues that there is insufficient evidence to sustain the wire fraud counts because the government failed to prove a scheme to defraud. Specifically, she asserts that there was no express misrepresentation or active concealment of a relevant fact. Although the phrase “scheme to defraud . . . may seem slightly amorphous,” “cases from this circuit and the Supreme Court have offered more concrete guidance on what the mail and wire fraud statutes require.” United States v. Hansmeier, 988 -15- F.3d 428, 436 (8th Cir. 2021) (citation modified). The government must establish the following to prove the existence of a fraudulent scheme: “(1) there was a deliberate plan of action or course of conduct to hide or misrepresent information; (2) the hidden or misrepresented information was material; and (3) the purpose was to get someone else to act on it.” Id. (quoting United States v. Luna, 968 F.3d 922, 926 (8th Cir. 2020)). Criminal liability attaches only if the “scheme to defraud . . . consist[s] of material misrepresentations: misrepresentations that have a natural tendency to influence, or are capable of influencing, the decision of the decisionmaking body to which they are addressed.” Id. (citation modified). “To defraud someone requires material, affirmative misrepresentations or active concealment of material information for the purpose of inducing action.” Id. (quoting Luna, 968 F.3d at 926). There is no requirement that the scheme to defraud “involve affirmative lies.” Id. But “simple nondisclosure” is insufficient to “constitute[] a basis for fraud.” United States v. Steffen, 687 F.3d 1104, 1114 (8th Cir. 2012) (citation modified). A distinction exists “between ‘passive concealment— mere nondisclosure or silence—and active concealment, which involves the requisite intent to mislead by creating a false impression or representation.” Id. at 1115 (quoting United States v. Colton, 231 F.3d 890, 899 (4th Cir. 2000)). Active concealment “is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter.” Id. at 1114 (quoting Colton, 231 F.3d at 899). By contrast, nondisclosure “is characterized by mere silence. Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does.” Id. (quoting Colton, 231 F.3d at 899). Crump argues that the RCHO scripts do not contain affirmative misrepresentations because they do not say that the caller is from “your [the customer’s] magazine company” or that the offer is for the customer “to ‘renew’ a subscription or ‘reduce’ an existing price.” Appellant’s Br. 32 (bold omitted). Crump maintains that RCHO’s “script correctly identifies the company making the call, -16- offers a magazine service at that company’s lowest price, and then confirms that the magazine subscription is separate from any other subscription that the caller may have.” Id. at 32–33. Additionally, Crump argues that the government presented no evidence that RCHO actively concealed that it was not the customers’ existing magazine company and thus did not conceal material information. She maintains that RCHO’s “scripts contain statements which are literally true.” Id. at 33 (citation modified). Having reviewed the record, we conclude that the government presented sufficient evidence of a scheme to defraud to sustain the wire fraud counts. For purposes of our analysis, we will assume without deciding that the RCHO telemarketers followed the written script without deviation. Although Crump is correct that RCHO’s script does not reference “your magazine company,” Appellant’s Br. 32 (bold omitted), the script does identify RCHO as “the folks that send out Magazines” and states that the call’s purpose is to “check up on the magazines” to ensure that everything was “arriving on time and in good condition” and to “help” the customer by “keeping you at OUR lowest price.” Gov’t Ex. E35, at 2. The script does not purport to sell anything new to the customer. The jury could reasonably infer that these statements were “calculated to deceive the [the customer] into believing that RCHO was not some random company that sent out magazines, but the company that sent out [the customer’s] magazines.” Appellee’s Br. 46. In fact, when asked whether the statement “‘keeping you at our lowest price today’ . . . implies that you’re calling from their magazine company,” Crump responded, “Well, the ‘keeping’ I do agree. I don’t like that it said ‘keeping,’ no.” R. Doc. 2040, at 214. When asked whether the statement is misleading, Crump replied, “Yes, I guess.” Id. at 215. She later agreed that RCHO’s scripts were misleading. Id. at 215–16 (“Q. And we all agree now that the scripts are misleading, correct? . . . . [T]hey are misleading. Yes? A. I don’t—okay. Sure. Q. Well, I’m asking you. A. I think— yes.”). In addition, the jury could reasonably conclude that the written rebuttals accompanying RCHO’s script were “designed to mislead the [customer] into -17- believing [the customer] ha[d] an existing account with RCHO.” Appellee’s Br. 47. For example, if the customer asked what price he or she was currently paying, “the RCHO telemarketer did not truthfully disclose [he or she] had no relationship with the [customer]. Rather, the telemarketer continued to deceive the [customer] by claiming . . . that he is new and RCHO does not give [him] access to that information.” Id. (citing Gov’t Ex. E35, at 4). In summary, we hold that the jury could reasonably conclude that RCHO’s script was not merely silent as to RCHO’s true identity but instead affirmatively misrepresented and actively concealed the fact that RCHO was not the customer’s existing provider. RCHO’s script was designed to “misle[a]d its customers into believing they were receiving a discount on their current magazines but then billed them for a whole new subscription.” Id. at 48.6 As a result, the government carried its burden of proving a scheme to defraud. 6 Crump initially argued that even if RCHO materially misrepresented itself as the customer’s existing magazine provider, we must still reverse her fraud conviction because it was premised on an improper fraudulent inducement theory. See Appellant’s Br. 36–38. She subsequently conceded that her argument is foreclosed by Kousisis v. United States, 605 U.S. 114, 122–23 (2025) (“The fraudulent- inducement theory is consistent with both the text of the wire fraud statute and our precedent interpreting it. We therefore reject petitioners’ proposed economic-loss requirement.”). See Appellant’s Reply Br. 7. Crump also argues that her conviction should be vacated because she was deprived of fair notice that her conduct was prohibited. She maintains that the wire fraud statute vastly expands federal jurisdiction into an area traditionally reserved to the states. Appellant’s Br. 39–41. According to Crump, RCHO’s “customers may have state law claims relating to breach of contract and consumer fraud, but to sustain [her] conviction . . . would vastly expand federal criminal liability in a way in which criminal defendants . . . lack fair and definite notice.” Id. at 41. “We are not persuaded. The ‘demanding’ materiality requirement substantially narrows the universe of actionable misrepresentations.” Kousisis, 605 U.S. at 135 (citing Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176, 194 (2016)); see also United States v. Pacilio, 85 F.4th 450, 460 (7th Cir. 2023) (“The defendants had fair notice that their conduct was prohibited by the wire and -18-  2. Knowledge of the Conspiracy and Intent to Defraud Crump next argues that there was insufficient evidence to prove her “knowledge of, and agreement to be part of” “a nationwide network of telemarketing companies that used sales scripts to defraud victim-consumers, many of whom were elderly and otherwise vulnerable.” Appellant’s Br. 42 (