In U.S. v. Lander, No. 10-10852 (Feb. 2, 2012), the Court held that proof presented at trial to support a mail fraud count materially varied from the allegations contained in the indictment. The Court therefore reversed this fraud conviction, as well as the money laundering convictions on which it was based.
The indictment alleged that the defendant falsely represented to real estate developers that they were required to pay a performance bond to him as county attorney. At trial, however, the evidence "disproved" that Lander made this misrepresentation. As a result, "the Government shifted its strategy," but its new theories did not coincide with the allegations in the indictment. As a result there was a material variance from the indictment. This variance prejudiced Lander, because the scheme the government relied on at trial was "entirely different from the one alleged in the indictment." The indictment therefore "failed to put Lander on notice of the crime for which he was convicted."
The Court rejected Lander’s sufficiency of the evidence challenge to another fraud conviction, but reversed the sentence and remanded for resentencing.