What is the test for a constructive amendment to an indictment?

Kalish claims that the Government "constructively amended the indictment" by offering evidence at trial that went beyond the Quick Bites transaction referenced in the substantive wire and mail fraud counts. "Constructive amendment... occurs when the presentation of evidence... modif[ies] essential elements of the offense charged to the point that there is a substantial likelihood that the defendant [was] convicted of an offense other than the one charged by the grand jury." United States v. Clemente, 22 F.3d 477, 482 (2d Cir. 1994). Nothing of the sort happened here. Count one of the indictment charged Kalish with "a scheme to defraud numerous Prospective Borrowers" seeking loans for "various business projects" over the course of a six-year period. (emphasis added.) Because the indictment reached well beyond the Quick Bites scheme, the prosecution was free to offer evidence of Kalish's many other victims.

In some tension with his constructive amendment claim, Kalish next argues that the indictment charged "an overly broad conspiracy" and was insufficiently specific. This claim fails because "an indictment 'need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state time and place in approximate terms.'" United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008), quoting United States v. Flaharty, 295 F.3d 182, 198 (2d Cir. 2002); see also United States v. Carr, 582 F.2d 242, 244 (2d Cir. 1978). Kalish's indictment did more than track the statutory text:

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