OPINION
Dеfendants Charles and Jack Rashid appeal the conviction and sentence of the District Court.- Jack pled guilty to conspiracy to commit money laundering and was sentenced to 78 months incarceration with credit for time served, three years supervised release, and restitution of $6,500,000.00. In a jury trial, Charles was found guilty and convicted on 24 of the 29 counts against him. He was sentenced to 37 months imprisonment, 3 years supervised release, and restitution of $6,500,-00.00. Charles and Jack Rashid now appeal their convictions and sentences. The appeals were consolidated. For the reasons stated below, we AFFIRM the District Court’s decision.
I. Facts
On April 23,1997, a grand jury sitting in the Eastern District of Michigan returned a multiple count indictment against three brothers, Jack, Charles, and George Rash-id and their attorney, Jack Chilingirian. The indictment arose out of a scheme largely carried out by Jack and Charles Rashid to defraud investors in fraudulent business entities, based on actual or nearly-completed multi-million dollar contracts for the sale of radar braking systems and related radar technology. George pled guilty to a lesser charge and is not involved in this appeal.
In the 1950s, George Rashid, Sr., the Rashids’ father, invented an automobile radar-based warning system which would warn of impending collisions. Over time, George Rashid, Sr. and his sons, Jack, Charlеs, and George, Jr., continued to refine the product. The appellants’ father died in the early 1980s, but his sons carried on the family’s company, Vehicle Radar Safety Systems, Inc. (“VRSS”). Charles served as the company’s engineer, and Jack took care of administration and sales. The facts in the record do not *411 specify George, Jr.’s role in the family business.
In 1988, the Rashid brothers began to solicit family, friends, and acquaintances to invest in “revolutionary” radar technology. In order to win investor confidence, the Rashids would display various fraudulent documents, including multi-million dollar “contracts” and “purchase orders,” that purportedly represented actual or nearly completed business dealings with large corporations. 1 In addition to showing the documents, the brothers would also tell potential investors about other lucrative “deals” in the works. Using these methods, the Rashids persuaded several different groups of people to invest considerable sums in VRSS. The investors never saw a return on their money or received their original investments back.
Starting in May 1988, the first group to invest in VRSS was led by Steven Rozich. 2 The investors were promised high returns on their investments. They were shown VRSS documents representing “deals” with several large multi-national corporations, including General Motors, BMW, and Siemens Corporation. By 1990, however, some of the Rozich investors became cоncerned about “deals” that had never materialized and filed a complaint with the Michigan Department of Commerce. In early 1991, these investors and their attorneys met with Jack Rashid and the Rash-id/VRSS attorney, Jack Chilingirian, to demand their money back. 3 They discussed the “contracts” that had formed the basis for the investment. Chilingirian offered a default judgment but no cash return, which was refused. Subsequently, after learning that certain “contracts” were indeed fraudulent, the Rozich investors again demanded return of their investments. The Rashids and Chilingirian denied any fraudulent activities and insisted there were actual “deals” in the works, but that the deals needed to remain confidential.
In January 1992, VRSS filed for bankruptcy protection, first in Chapter 11 and later converting to Chapter 7. 4 While these proceedings were pending, the Rashids were negotiating with Gencorp Aerojet, a California corporation, for possible purchase of the radar braking technology, or for VRSS in its entirety. In August 1992, Gencorp management informed the Rash-ids that there would be no deals between the companies. However, based on seeing signed “contracts” between VRSS and BMW and VRSS and Masco, a Detroit corporation, produced by Jack Rashid to encourage investment, a Gencorp Aerojet engineer, Charles Rudder, and others he brought in with him, decided to personally invest in VRSS. 5 One of the Rudder investor also brought in other investors, some *412 of whom became themselves entangled in the Rashid fraud actions. 6
Through 1995, Chilingirian continued to assure investors that the Rashids were working on several “deals.” He also attempted to quickly settle all the bankruptcy claims against VRSS and the Rashids, claiming that time was of the essence or the money available for settlement from a secret “lender” would become unavailable. The secret “lender” was a group of Canadian investors led by Paul and Ann Louise Tindall, who were related to Jack Rashid’s wife. On several occasions, Jack Rashid showed the Tindalls various VRSS “contracts,” one with BMW/Masco, another with Northwest Airlines. Working through Paul Tindall in June, 1995, Charles and Jack Rashid went to Toronto to exhibit the radar technology to a large group of potential investors, assuring everyone of the imminent BMW deal and stating that the money was already in escrow. The Canadians invested heavily in VRSS.
Later that year, the Rashids incorporated Advanced Radar Systems (“ARS”) in Canada as a corporate entity for these foreign investments. Neither the Rashids nor Chilingirian informed the Canadian investors about the VRSS bankruptcy in the United States or that they planned to use the Canadian money to pay VRSS’s creditors.
In 1996, Chilingirian and members of the Rudder group discussed sеttlement of the investor claims against the Rash-ids/VRSS. Some investors did get a portion of their money back, but they had to sign affidavits exculpating Jack Rashid. Despite numerous complaints from investors, Chilingirian continued to deposit money from the Kraft group into his client trust account and then withdraw amounts for himself and Jack Rashid.
Charles’ trial was held from March 23 through April 20,1999. Charles was found guilty on 24 of 29 counts against him. On September 15, Charles was sentenced to concurrent 37-month custodial terms of all 24 counts. 7 He was also assessed a $1,200 special assessment and ordered to pay restitution of $6.5 million. On appeal, Charles argues that there was a constructive amendmеnt to his indictment and that the court failed to issue a requested jury instruction.
On January 15, 1999, Jack Rashid pled guilty to Count 33 (conspiracy to commit money laundering). On May 18, 1999, Jack filed a motion seeking to withdraw his guilty plea due to the government’s refusal to recommend a § 5K1.1 downward departure for substantial assistance. On December 13, 1999, Jack was sentenced to 78 months imprisonment and three years’ supervised release. He was also assessed a $50 special assessment and ordered to pay restitution of $6.5 million. On appeal, Jack Rashid argues that the government’s refusal to file a § 5K1 motion warrants judicial review because the government did not act in good fаith in its refusal. Jack Rashid also alleges that the District Court erred by applying the fraud sentencing guidelines to Chilingirian and not to Jack Rashid.
*413 II. STANDARD OF REVIEW
This Court reviews the question of whether there was an amendment to the indictment
de novo. United States v. Robison,
This Court reviews for clear error a district court’s factual findings in its application of the Sentencing Guidelines.
See United States v. Jones,
III. DISCUSSION
Charles and Jack Rashid raise several issues on appeal. First, Charles argues that the presentation of evidence about the Rozich Group effected a constructive amendment to his indictment. He also alleges that the District Court’s failure to issue his requested jury instruction was erroneous. By contrast, Jack argues that the District Court’s refusal to recommend a § 5K1 departure was not in good faith. He also argues that the District Court should have applied the fraud guideline to his sentencing. However, the appellants’ arguments lack merit.
A. Variance/Constructive Amendment (Charles Rashid)
Charles Rashid argues that the admission of testimony by the first group of investors — the Rozich Grоup — effected a variance from the indictment that amounted to a constructive amendment. Charles asserts that the indictment did not refer to the Rozich Group and that evidence pertaining to the Rozich Group was about activities that occurred beyond the statute of limitations (prior to April 1992.). Therefore, he argues that the presentation of such evidence effectuated a constructive amendment which would warrant reversal.
The Fifth Amendment guarantees that an accused be tried only on those offenses presented in an indictment and returned by a grand jury.
Stirone v. United States,
Charles does not argue that the indictment was literally changed. He argues, rather, that the presentation of evidence about the Rozich Group had the effect of changing the conspiracy charge of the indictment (Count 1). Thus, he argues, this is a
constructive amendment,
which warrants reversal. “This Circuit has held that a variance rises to the level of a constructive amendment when the
*414
terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.”
Id.; see also United States v. Atisha,
There was no variance or constructive amendment in this case. The first count of the indictment charged Charles and Jack Rashid, along with Jack Chilingirian with conspiracy in violation of 18 U.S.C. § 371, and other counts charge the defendants with mail and wire fraud. The first two overt acts of conspiracy listed in the indictment pertain solely to the Rozich Group. Charles focuses on a part of the indictment that says, “Generally, the Rashids would' solicit funds from a group of individuals through a contact person or persons, including, but not limited to, Gary Rudder, Joseph Hayden, Paul Tindall and Boyd Kraft,” and the fact that no one from the Rozich Group is included in this list. Especially considering the fact that overt acts were listed which involved only the Rozich Group, and the fact that the above exсerpt explicitly says “not limited to,” Charles’ argument that the name of one of the Rozich Group members who testified at trial should have been included in the indictment is unpersuasive. Moreover, according to the indictment, the conspiracy lasted from 1998 through April 1997, and all of the evidence of the Rashids’ involvement with the Rozich Group concerns activities that took place within the dates of the conspiracy identified in the indictment. Thus, this case is not parallel to the cases relied on by Charles Rashid in which the jury was permitted to consider proof of facts that were substantially different from the offense alleged in the indictment.
See, e.g., United States v. Ford,
As for Charles’ argument that the variance amounted to a constructive amendment because the Rozich Group evidence predated the time frame under consideration in accordance with the statute of limitations, this argument is based on inaccuracies as well. For instance, one of the overt acts listed, the November 1992 meeting, did take place within the applicable time frame. As such, some of thе evidence about the Rozich Group did involve activities that took place during the relevant period of time.
However, the government did introduce evidence of activities that took place prior to the allowable time frame. But, the government is permitted to introduce evidence of early conspiratorial conduct that is insulated from prosecution by the statute of limitations, “as long as the conspiracy subject to trial has continued into the permissible prosecutable period and an overt act in furtherance of the conspiracy has been committed during that period.”
United States v. Flores,
In sum, the introduction of the evidence concerning the Rozich Group did not prove facts that were substantially different from those set forth in the indictment and did not create a likelihood that Charles Rashid would be convicted of an offense that was not charged in the indictment. Therefore, the jury properly considered this evidence and appropriately determined Charles Rashid’s guilt in this case.
B. Jury Instructions (Charles Rashid)
Charles Rashid next argues that the District Court erred by fading to issue the following jury instruction at his request:
CONSIDERATION OF CERTAIN EVIDENCE PRESENTED WITH RESPECT TO COUNT I
Evidence has been prеsented with respect to Defendant Charles Rashid’s relationship in connection with individuals identified as Stephen Rozich, Robert Mink, Joseph Boyle, Chuck Wright, Larry Cheek, and Raymond Schovers. In order to find Defendant Charles Rashid to have committed Count I, that is conspiring to commit the crimes of wire fraud and mail fraud, based on testimony and evidence introduced pertaining to Stephen Rozich, Robert Mink, Joseph Boyle, Chuck Wright, Larry Cheek, and Raymond Schovers, you must find that he committed an act in furtherance of mail fraud or wire fraud as further described in these instructions pertaining to the Rozich group of individuals.
If the evidence and testimony does not convince you beyоnd a reasonable doubt that Charles Rashid committed an act in furtherance of a mail fraud or wire fraud offense with respect to Stephen Rozich, Robert Mink, Joseph Boyle, Chuck Wright, Larry Cheek, and Raymond Schovers as further described in these instructions, you must find the Defendant Charles Rashid not guilty of the conspiracy count as it relates to the Rozich group of investors.
(J.A. at 983).
The District Court properly refused to give this instruction on the basis that it contained an inaccurate statement of law. Contrary to Charles’ instruction, the government was not required to prove that Charles Rashid “committed an act in furtherance of mail fraud or wire fraud ... pertaining to the Rozich group of individuals.” (J.A. at 983). Rather, as the relevant Sixth Circuit Pattern Jury Instruction provides, “the government must prove that at least one of these [overt] acts was committed by a
member
of the conspiracy.” Pattern Crim. Jury Instr. 6th Cir., No. 3.04 (emphasis added);
see also United States v. Strong,
The District Court did not commit reversible error here. “A district court’s refusal to deliver a requested instruction is reversible
only
if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.”
United States v. Williams,
C. Departure for Substantial Assistance (Jack Rashid)
On January 15, 1999, Jack Rashid entered into a Rule 11 plea agreement in which he pled guilty to conspiracy to commit money laundering. The agreement provided that Jack’s sentence would not exceed 78 months. The agreement further provided that “[u]pon the government’s determination that defendant’s cooperation amounts to substantial assistance in the investigation of others, the government will request the court to depart downward from the applicable sentencing range. The government reserves the right to make the sole determination as to whether and when defendant has provided substantial assistance.” (J.A. at 145). According to Jack Rashid, he spent over forty hours providing assistance to agents and attorneys for the government. Nonetheless, the government elected not to file a motion for downward departure based on substantial assistance under § 5K1. The government informed Jack’s attorney that Jack had not been fully cooperating in good faith.
On May 18, 1999, Jack Rashid filed a Motion to Withdraw Guilty Plea. In the alternative, the defendant moved for downward departure based on his cooperation, and argued that the court should be able to depart on this basis sua sponte.
The District Court denied defendant’s motions. First, the court, in agreement with the argument submitted by the government, determined that the Presentenc-ing Report’s enhancement for obstruction of justice was approрriate. Therefore, the cap in the plea agreement was within the guideline range and the court could sentence defendant within the terms of the plea agreement. Second, the court concluded that the plea agreement reserved to the government the right to determine whether the defendant had provided substantial assistance. Thus, the court stated that it would not substitute its judgment for the government’s and denied the motion for an evidentiary hearing. Similarly, the court denied defendant’s motion to depart downward, but did so without prejudice to the defendant’s raising the motion orally at the time of sentencing. Jack Rashid did renew this motion during sentencing, but thе court denied the motion stating that such a motion must come from the government.
Jack Rashid argues that the government’s refusal to file a § 5K1 motion for downward departure was not made in good faith. Jack contends that he satisfied his obligations under the agreement and that this Court should remand to the district court to conduct an evidentiary hearing to determine whether the government was acting in bad faith. He argues that if this Court determines that the defendant did provide substantial assistance and that the government was acting in bad faith, then the district court should compel the government to file a downward departure motion. In the alternative, Jack *417 Rashid argues that the district court should be permitted to depart for cooperation without a § 5K1.1 motion from the government. 8
In
Wade v. United States,
“[W]e hold that federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant’s race or religion.
It follows that a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidеntiary hearing. Nor would additional but generalized allegations of improper motive.”
In the instant case, Jack Rash-id does not argue that the government had an unconstitutional motive for failing to move for downward departure. Rather, as stated above, he argues, based on case law from other circuits, that the government acted in bad faith. 9 Defendant’s arguments on this issue have been soundly rejected by this Court.
It is well settled that “absent a condition in the plea agreement that binds the government to move for a downward departure, [a defendant] is confined to arguing under
Wade
that the government failed to move for constitutionally impermissible reasоns (such as race or religion).”
United States v. Williams,
In the case at bar, the government expressly reserved the discretion to decide whether to move for a substantial assistance departure, and Jack Rashid has not alleged that the government acted with an unconstitutional motive when it elected not to file such a motion. We see no reason to change the settled law of this Circuit. Therefore, the District Court acted appropriately when it denied defendant’s request for an evidentiary hearing.
In the alternative, Jack Rashid argues that even without a § 5K1.1 motion by the government, the District Court may make a downward departure based on defendant’s cooperation under § 5K2.0 of the Guidelines
sua sponte.
10
This court has held that a motion for downward departure based on substantial assistance must be made by the government.
See United States v. Levy,
D. Fraud Guideline versus Money Laundering Guideline
Jack Rashid plead guilty to Count 33 of the indictment (money laundering) and his attorney, Jack Chilingirian, was found guilty on that count by the trial court. Judge O’Meara sentenced both defendants, but at different times and according to different sentencing guidelines. The judge sentenced Jack Chilingirian according to the sentencing guidelines for fraud (§ 2F1.1) and sentenced Jack Rashid according to the sеntencing guidelines for money laundering (§ 2S1.1). The fraud guideline results in a significantly lower offense level. Thus, Jack Rashid argues on appeal that the district court erred by applying the fraud guidelines to Chilingiri-an and not to him.
Rashid argues that the District Court should have applied the lower fraud guideline instead of the money laundering guideline. By contrast, the government responds that the District Court’s failure to depart downward is not reviewable.
See e.g., United States v. Hill,
Rashid heavily relies on
Smith
and the reasoning contained therein. In
Smith,
the Third Circuit held that the money laundering guidelines were too harsh to apply to what it described as a routine fraud case in which the money laundering activity was an “incidеntal by-product” of a kick-back scheme.
*420
Thus, Rashid argues that because this case did not involve drug trafficking or organized crime, the money laundering guideline was not really meant to apply. This Court, however, has rejected the idea that an offense is outside of the heartland of the money laundering guidelines merely because it involves proceeds from specified illegal activities other than drug trafficking and organized crime.
See Ford,
the inclusion of gambling offenses within the money laundering statutes as “specified unlawful activities” shows conclusively that an offense is not outside the heartland merely because it involves gambling proceeds rather than drug or organized crime proceeds. There may, of course, be articulable reasons why a particular gambling case does not threaten the kind of harm Congress aimed at preventing, but [defendants] have not shown any. Without some showing of particular factors “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” United States v. Reed,167 F.3d 984 , 995 (6th Cir.1999) (quoting 18 U.S.C. § 3553(b)), the district court should not depart.
Likewise, in the case at bar, wire and mail fraud, were the underlying illegal activities that generated the proceeds at issue, and both offenses are included within the money laundering statutes as “specified unlawful activities.” See 18 • U.S.C. § 1956(c)(7)(A). Thus, the fact that Rash-id’s money laundering did not involve proceeds from drug trafficking or organized crime is not a sufficient reason for this Court to conclude that his offense was outside of the heartland for money laundering under the Guidelines. Thus, the District Court did not err in denying Rash-id’s motion to -be sentenced under the fraud guideline.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the decisions of the District Court on all points.
Notes
. VRSS’s secretaries testified that they typed numerous multi-million dollar "contracts;” some of which were kept blank so the "contract” would be ready if an investor came into the offices. At trial, several witnesses from various corporations testified that the documents were false and contained forged signatures, and the court found that it was undisputed that the contracts did not really exist. (J.A. at 748).
. The "Rozich Group” also included Bob Mink, Larry Cheek, Joe Boyle, Charles Wright, and Raymond Shovers.
. Chilingirian served as the counsel for the Rashids and VRSS from either 1988 or 1989 through the date of the indictment. He held a fifteen percent share in VRSS.
. Attorney Chilingirian handled the VRSS bankruptcy proceedings.
. The other members of the "Rudder Group” were Gary Rudder, Victoria Weston, and Len Jarrott.
. The “Hayden/Halek Group,” consisting of Joe Hayden and Vince Halek, learned of VRSS through Gary Rudder. Hayden provided money to the Rashids, and, at the Rash-ids’s request, was not entirely truthful about this money when deposed in the bankruptcy proceedings.
. Charles Rashid was convicted on multiple counts of conspiracy to defraud the United States, aiding and abetting wire fraud and aiding and abetting mail fraud.
. U.S. Sentencing Guidelines Manual § 5K1.1 provides that "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines."
. Jack Rashid primarily relies on
United States v. Mikaelian,
. Section 5K2.0 provides, in relevant part, "the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence difference from that described....". U.S.S.G § 5K2.0.
. The Third Circuit has since clarified the holding of Smith:
Where money laundering is not 'minimal or incidental,’ and is ‘separate from the underlying crime' and intended to ‘make it appear that the funds were legitimatе' or to funnel money into further criminal activities, § 2S1.1 is an applicable guideline. The guideline may also be applicable if there is evidence that the activities which fulfilled the broad statutory requirements *420 for money laundering were extensive with drug trafficking or other serious crime.
United States v. Mustafa,