In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2574

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDY HE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 963--Ruben Castillo, Judge.

Argued November 9, 2000--Decided April 2, 2001

 Before FLAUM, Chief Judge, and RIPPLE and KANNE,

Circuit Judges.

 RIPPLE, Circuit Judge. Andy He was charged with

encouraging and inducing an alien to enter the

United States illegally, in violation of 8 U.S.C.

sec.sec. 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i).

A jury found him guilty as charged, and the

district court sentenced Mr. He to a term of five

months of imprisonment, a $3,000 fine and a twoyear term of supervised release. Mr. He then

appealed his conviction to this court. He argues

that a supplemental instruction given by the

district court had the effect of constructively

amending the indictment. For the reasons set

forth in the following opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A. Facts

 On December 12, 1999, a Chinese woman arrived at

O’Hare International Airport on a flight from

Narita, Japan. This woman, later identified as

Jin Xing Yang, presented a United States passport

in the name of Pik Sze Chan to an Immigration and

Naturalization Service ("INS") inspector. The

inspector noticed that Yang was unable to speak

English and answer his questions, despite the

fact that her Customs Declaration form was filled

out in English. Given an opportunity to complete

a new Customs Declaration form in English, Yang
was unable to do so. INS inspectors later made a

closer inspection of the passport that Yang had

presented. This inspection revealed that the

passport had been doctored--a second lamination

had been placed over the original passport’s

lamination, and a picture of Yang had been

inserted between the two layers. The inspectors

soon determined that Yang, using the name Pik Sze

Chan, had been traveling with Mr. He, as the two

were seated next to one another on a flight from

Bangkok, Thailand, to Narita and then from Narita

to Chicago. Moreover, airline records

demonstrated that the one-way airline tickets for

Mr. He and Yang’s journey to the United States

had been purchased together at the Bangkok

airport. 

 Both Yang and Mr. He were then detained by INS

inspectors and interviewed separately. Yang

claimed that she was traveling alone and denied

knowing Mr. He. She carried only a purse with

her, which was devoid of any currency, credit

cards or flight-related information. The purse

did, however, contain a piece of paper with a New

York City address and phone number written on it;

this same information had been listed as Pik Sze

Chan’s address and phone number on the Customs

Declaration form that Yang had presented at the

INS checkpoint. 

 Meanwhile, Mr. He told inspectors that he had

been traveling alone and had only met Yang when

he sat next to her on the flight to Chicago. When

asked about the slip of paper found in Yang’s

purse, Mr. He admitted that he had written this

information down and given it to Yang and that it

referred to the address and phone number of his

uncle./1 Mr. He also explained that he had

helped Yang fill out her Customs Declaration

form. Inspectors then asked Mr. He to empty his

pockets; when he did, he produced three boarding

passes--two in his own name and one in the name

of Pik Sze Chan. Mr. He was also found to be

carrying a Chinese passport belonging to Jin Xing

Yang, Yang’s Chinese identification card with her

true name on it, and two airline tickets for Mr.

He and Pik Sze Chan to fly from Chicago to New

York in adjoining seats on that day.

 Other relevant facts regarding this incident

were later discovered. The altered passport

presented by Yang to the INS inspector had been

reported stolen in New York, where Mr. He then

lived. Flight records also confirmed that Mr. He

and Yang had traveled together on the same flight

from China to Hong Kong and then from Hong Kong

to Bangkok on December 10, 1999, two days before

they were detained in Chicago. Additionally, the

two one-way tickets purchased for Mr. He and Yang

from Bangkok to New York (via Chicago) on

December 12 had cost over $1,800 and were paid
for in cash. A bank receipt found in Mr. He’s

wallet indicated that he had exchanged an amount

of United States currency for Thai currency in

the amount of $1,774, slightly less than the cost

of those tickets, on the previous day. 

 Mr. He was later arrested and charged in a onecount indictment with encouraging and inducing an

alien to enter the United States illegally, in

violation of 8 U.S.C. sec.sec. 1324(a)(1)(A)(iv)

and 1324(a)(1)(B)(i).

B. District Court Proceedings 

 Mr. He’s trial commenced on March 13, 2000. At

the initial jury instruction conference two days

later, before the jury retired to begin

deliberations, the district court instructed the

jury regarding the elements of the offense as

follows:

 Title 8, United States Code Section

1324(a)(1)(a) provides any person who encourages

or induces an alien to come to, enter, or reside

in the United States, knowing, or in reckless

disregard of, the fact that such coming to,

entry, or residence is or will be in violation of

law shall be guilty of an offense against the

United States.

 To sustain the charge in the indictment, the

government must prove the following propositions:

 First, that Jin Xing Yang was an alien;

 Second, that the defendant encouraged or induced

Jin Xing Yang to enter the United States in

violation of law;

 And, third, that the defendant knew, or was in

reckless disregard of, the fact that Jin Xing

Yang’s entry into the United States would be in

violation of the law.

 If you find from your consideration of all the

evidence that each of these propositions has been

proved beyond a reasonable doubt, then you should

find the defendant guilty. 

 If, on the other hand, you find from your

consideration of all the evidence that any of

these propositions has not been proved beyond a

reasonable doubt, then you should find the

defendant not guilty.

R.58-3 at 481-82. The jury then began its

deliberations.

 After less than two hours, the jury sent a

request to the court for additional instructions.
The jury’s note read as follows:

We need a better definition of encouraged or

induced.

Does this differ from aiding and abetting?

[signature of the jury foreperson]

R.36. The prosecution and defense counsel then

met with the district court to discuss this note.

The Government suggested that the jury be

provided with the definitions of "encourage" and

"induce" found in Black’s Law Dictionary. The

district court agreed that these formulations

would be helpful and suggested that a response to

the jury’s request should include a few of the

several dictionary definitions listed for both

words. Mr. He’s attorneys objected, on the ground

that the district court’s proposed definitions of

the two words were overly broad. Additionally,

all parties, including the district court, agreed

that in order that the jury not be confused in

their deliberations, it should be instructed that

"aiding and abetting" was a separate legal

concept that was not before them in this case.

 As a result of this discussion, the court

submitted the following supplemental instruction

to the jury:

MEMBERS OF THE JURY:

 In answer to your specific questions,

"encourage" means to knowingly instigate, help or

advise. "Induce" means to knowingly bring on or

about, to affect, cause or to influence to an act

or course of conduct.

 The concept of aiding and abetting is not before

you in any of the Court’s instructions.

 Please use the answer in conjunction with all of

your instructions in your deliberations.

JUDGE RUBEN CASTILLO

R.37 (emphasis in original). Because one element

of the offense required that Mr. He have acted

knowingly or in reckless disregard for the fact

that Yang’s entry into the United States was

illegal, the district court included the word

"knowingly" in its definitions of "encourage" and

"induce." 

 Shortly after receiving this supplemental

instruction, the jury returned its verdict,

finding Mr. He guilty as charged. On June 7,

2000, the district court sentenced Mr. He to five

months of imprisonment, a $3,000 fine and a two-
year term of supervised release. 

II

DISCUSSION

 Mr. He contends that the district court’s

supplemental instruction was erroneous because it

relied on a dictionary definition of common

English words and impermissibly broadened the

scope of the indictment against him. We review

the district court’s choice of a supplemental

jury instruction for abuse of discretion./2 See

United States v. Snyder, 189 F.3d 640, 646 (7th

Cir. 1999), cert. denied, 527 U.S. 1097 (2000);

United States v. Rios-Calderon, 80 F.3d 194, 197

(7th Cir. 1996). We have noted that "[o]nce it is

clear that a jury has difficulties concerning the

original instructions, reinstruction is

appropriate." United States v. Lakich, 23 F.3d

1203, 1208 (7th Cir. 1994) (citation and

quotation marks omitted); see also United States

v. Sanders, 962 F.2d 660, 677 (7th Cir. 1992).

The court’s power to reinstruct includes within

it the power to reformulate or supplement

instructions previously provided to the jury. See

Lakich, 23 F.3d at 1208; Sanders, 962 F.2d at

677. In our review of a supplemental jury

instruction, "we consider: (1) whether the

instructions as a whole fairly and adequately

treat the issue; (2) whether the supplemental

instruction is a correct statement of the law;

and (3) whether the district court answered the

jury’s specific question correctly." Snyder, 189

F.3d at 646; see also United States v. Alexander,

163 F.3d 426, 428 (7th Cir. 1998) (per curiam). 

 In this case, we believe the district court in

no way abused its discretion in providing the

supplemental jury instruction at issue. At the

outset, we note that the jury instructions as a

whole fairly and adequately treated the issues in

this case. The jury had been told that to convict

Mr. He of the charges against him, it must find

that: (1) Yang was an alien, (2) Mr. He

encouraged or induced Yang to enter the United

States in violation of the law and (3) Mr. He

knew, or was in reckless disregard of, the fact

that Yang’s entry would violate the law. Mr. He

does not argue that this initial statement of the

law was incorrect. Thereafter, when the jury

communicated that it was uncertain as to the

meaning of the terms "encourage" or "induce," it

was permissible for the district court to provide

it with a definition of those terms. In similar

situations, when a jury has asked for a

definition of a key term after deliberations have

begun, we have noted that "the court would have

failed to treat [the] issue fairly or adequately

if it had not issued a supplemental instruction."
Alexander, 163 F.3d at 428-29; see also Snyder,

189 F.3d at 646 (finding that the court’s

providing of the dictionary definition of the

term "sale" to include the term "trade" was

proper, after the jury sent the judge a note

asking whether trading was considered selling);

United States v. Romero, 57 F.3d 565, 573 (7th

Cir. 1995) (supplemental instruction responding

to jurors’ request for definition of "possess"

was proper, where it accurately stated the law

and where district court "took pains to avoid

highlighting the instruction by reminding the

jury that it ’shouldn’t make [its] determination

based on what one instruction says’")./3 

 Moreover, the district court took great pains to

ensure that the supplemental instruction was

understood by the jury in the larger context of

the prerequisites for conviction under the

statute. Because 8 U.S.C. sec. 1324(a)(1)(A)(iv)

requires that Mr. He acted knowingly or in

reckless disregard of the fact that Yang’s entry

into the United States was illegal, the district

court inserted the word "knowingly" before the

definitions provided for "encourage" and

"induce." Additionally, to ensure that the jury

considered not only the meaning of the words

defined in the supplemental instruction, but also

the other elements of the crime, the district

court added that the jury should "use the

[supplemental instruction] in conjunction with

all of [its] instructions in [the]

deliberations." R.37 (emphasis in original).

These precautions also help to establish that the

jury instructions as a whole were a fair and

adequate treatment of the issues in this case.

 The supplemental instruction was a correct

statement of the law. Mr. He points to no

authority suggesting that the synonyms provided

by the district court in the supplemental

instruction are not proper definitions for the

terms "encourage" and "induce" generally or that

they inappropriately distort their meanings under

the statute. These definitions were taken

directly from Black’s Law Dictionary/4 and

conform to other dictionary definitions of those

words. See, e.g., Merriam Webster’s Collegiate

Dictionary 381 (10th ed. 1996) (defining

"encourage" as "to inspire with courage, spirit,

or hope . . . to spur on . . . to give help or

patronage to"), id. at 594 (defining "induce" to

mean "to move by persuasion or influence . . . to

call forth or bring about by influence or

stimulation . . . to cause the formation of");

American Heritage Dictionary 657 (2d ed. 1985)

(defining "induce" as "[t]o lead or move by

influence or persuasion . . . [t]o bring about

the occurrence of; cause")./5 Moreover, we also

note that Mr. He apparently did not find fault
with the general practice of providing the jury

with explanatory definitions of statutory terms.

In its initial instructions to the jury, the

district court defined the statutory terms

"alien," "knowingly," and "reckless disregard,"

definitions to which Mr. He raised no objection.

 Mr. He argues that as a result of the

supplemental instruction, the jury might have

thought that it could convict him for "merely

influencing, or somehow affecting [Yang’s]

entry," so that the fact that "Mr. He translated

some unspecified language for Ms. Yang could be

interpreted by the jury to satisfy the inducing

element." Appellant’s Br. at 11, 13. This

argument fails to take into account the effect of

the initial jury instructions that set forth all

of the elements that must be found to find Mr. He

guilty of violating the statute and all the

safeguards that the district court inserted in

the supplemental instruction. Read in the context

of all the instructions, the definitions included

in the supplemental instruction made clear, for

example, that for Mr. He to have "induced" Yang’s

entry under the meaning of the law, he had to

"influence" or "affect" her to come to, enter or

reside in the United States. It would also have

been clear that Mr. He must have known, or have

acted in reckless disregard of, the fact that

Yang’s coming to, entry or residence in the

United States was in violation of the law. As a

result, the instructions, read as a whole, could

not have led the jury to believe that it could

find Mr. He guilty if, as he claimed, he simply

met Yang on the trip to Chicago and innocuously

helped her to translate some information during

the flight.

 The district court answered the jury’s specific

question correctly. The jury required more

information regarding the meaning of the terms

"encourage" and "induce," and the district court

provided an accurate dictionary definition of

those terms to assist the jury. The district

court has broad discretion in determining how

best to respond to such a question; if the answer

was adequately provided in previous instructions,

the court might choose simply to refer the jury

back to those instructions for guidance. See

United States v. Span, 170 F.3d 798, 802 (7th

Cir.), cert. denied, 528 U.S. 862 (1999). In this

case, however, the court believed that to address

effectively the jury’s request for a "better

definition" of the two terms, R.36, it needed to

provide a supplemental instruction including

words defining those terms. As we have on other

occasions, we hold that this use of a definition

is an appropriate answer to the jury’s specific

question regarding the meaning of a key term in

its deliberations. See Snyder, 189 F.3d at 646;
Alexander, 163 F.3d at 429; Romero, 57 F.3d at

573. 

 In light of our conclusion that the supplemental

instruction given by the district court

accurately stated the law, Mr. He’s claim that

the instruction constructively amended the

indictment against him must also fail. An

indictment is constructively amended, in

violation of the Fifth Amendment, "when . . . the

court (usually through its instructions to the

jury) . . . broadens the possible bases for

conviction beyond those presented by the grand

jury." United States v. Cusimano, 148 F.3d 824,

829 (7th Cir. 1998) (citation and quotation marks

omitted). However, we have often noted that "not

every variation from the verbiage of the

indictment, either in terms of proof or jury

instructions, constitutes a constructive

amendment." United States v. Baker, 227 F.3d 955,

960 (7th Cir. 2000), cert. denied, 121 S. Ct.

1095 (2001); see also United States v. Pigee, 197

F.3d 879, 886 (7th Cir. 1999), cert. denied, Webb

v. United States, 529 U.S. 1044 (2000), cert.

denied, Lipscomb v. United States, 120 S. Ct.

2735 (2000); United States v. Willoughby, 27 F.3d

263, 266 (7th Cir. 1994). To constructively amend

an indictment, the jury instructions must go

"’beyond the parameters of the indictment in that

it establishes offenses different from or in

addition to those charged by the grand jury.’"

Baker, 227 F.3d at 960 (quoting Pigee, 197 F.3d

at 886). 

 The indictment against Mr. He charged that he

"did encourage and induce an alien, specifically

a citizen of China, to come to, enter, and reside

in the United States, knowing and in reckless

disregard of the fact that such coming to, entry,

and residence was and would be in violation of

law." R.12. The district court’s definitions of

"encourage" and "induce" in the supplemental

instructions did not alter the essential meaning

of those words, and the jury instructions as a

whole track the statutory prerequisites of 8

U.S.C. sec. 1324(a)(1)(A)(iv), which were set out

in the indictment. Therefore, the supplemental

jury instructions did not constructively amend

the indictment against Mr. He.

Conclusion

 The Supreme Court has noted that "[w]hen a jury

makes explicit its difficulties a trial judge

should clear them away with concrete accuracy."

Bollenbach v. United States, 326 U.S. 607, 612-13

(1946). We believe the district court fulfilled

its responsibilities in this regard. It certainly

did not abuse its discretion in fashioning the

supplemental jury instruction. Therefore, the
judgment of the district court is affirmed.

AFFIRMED

/1 Authorities later discovered that the address

correlated with the former address of Mr. He’s

brother, not that of his uncle. Additionally, the

Customs Declaration form that Mr. He had filled

out for himself was later found to contain an

incorrect address.

/2 The Government argues that we should review this

issue for plain error because Mr. He failed to

raise below the argument that the district

court’s additional definitions for the terms

"encourage" and "induce" constructively amended

the indictment. The Government notes that Mr.

He’s attorneys objected to the use of these

definitions as being "far too broad." The

Government points out, however, that when the

attorneys argued to the court that the

supplemental instruction "might actually lead to

a material change in the indictment," R.58-3 at

488, they were referring only to language

regarding the applicability of the term "aiding

and abetting," not to the proposed definitions

for "encourage" or "induce." Therefore, because

Mr. He did not specifically argue that the

definitions for "encourage" and "induce" would

themselves constructively amend the indictment,

the Government asserts that Mr. He has waived

that objection on appeal. We need not determine

whether such waiver occurred, however, due to our

determination that the district court’s

supplemental instruction was proper under any

standard of review.

/3 Mr. He suggests that we should find the

supplemental instruction in error for the same

reason that we have consistently admonished

district courts not to attempt to define the term

"reasonable doubt." See, e.g., United States v.

Blackburn, 992 F.2d 666, 668 (7th Cir. 1993);

United States v. Bardsley, 884 F.2d 1024, 1029

(7th Cir. 1989); United States v. Glass, 846 F.2d

386, 387 (7th Cir. 1988). However, we have taken

this approach regarding the concept of reasonable

doubt due to the well-noted difficulties created

by attempts to find a precise definition for that

standard of proof. See, e.g., Gacy v. Welborn,

994 F.2d 305, 312 (7th Cir. 1993) (noting that

"[b]urdens of proof and persuasion are hard to

explain"); Blackburn, 992 F.2d at 668 (noting

that definitions of reasonable doubt have a

likelihood of "confus[ing] juries more than the

simple words themselves"); United States v. Hall,

854 F.2d 1036, 1039 (7th Cir. 1988) ("An attempt

to define reasonable doubt presents a risk

without any real benefit."); Glass, 846 F.2d at

387 (explaining that "[a]ttempts to explain the
term ’reasonable doubt’ do not usually result in

making it any clearer to the minds of the jury")

(citation and quotation marks omitted). However,

where, as here, a definition of a statutory term

can provide jurors with helpful information that

does not alter the statutory requirements for

conviction, the giving of such a definition is in

no way precluded.

/4 The entire definition provided by Black’s Law

Dictionary for "encourage" is as follows: "In

criminal law, to instigate; to incite to action;

to give courage to; to inspirit; to embolden; to

raise confidence; to make confident; to help; to

forward; to advise." Black’s Law Dictionary 527

(6th ed. 1990). The entire definition given for

"induce" is: "To bring on or about, to affect,

cause, to influence to an act or course of

conduct, lead by persuasion or reasoning, incite

by motives, prevail on." Id. at 775.

/5 Additionally, in different contexts, we have

noted approvingly definitions of the term

"induce" that were similar to the definition

chosen by the district court. See, e.g., Drobny

v. Commissioner, 113 F.3d 670, 678 (7th Cir.

1997) (defining "induce" as "’to lead or move by

influence or persuasion,’ ’to bring about the

occurrence of; cause’") (quoting American

Heritage Dictionary 657 (2d ed. 1982)); United

States v. Smith, 253 F.2d 95, 98 (7th Cir. 1958)

(defining "induce" as "to lead on; to influence;

to prevail on; to move by persuasion or

influence") (citing Webster’s New International

Dictionary (2d ed. 1958)).