1. Where the district court's instructions to the jury in a crim inal case
provide—as part of the theory of defense instruction—an explana tion of an essential
element of the offense, does the prosecution violate due proces s or constructively
amend the indictment by wrongly advising the jury to disregard as mere defense
argument the law given by the di strict court in the defense the ory 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 fr aud committed by other
participants, without application of either a vicarious liabili ty theory under Pinkerton
v. United States, 328 U.S. 640 (1946 , or an aiding and abetting theory?

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?