                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 23 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 03-1155
                                                        (Colorado)
 DONALD PRITCHARD,                               (D.Ct. No. 01-CR-288-D)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Donald Pritchard stands convicted of eight counts of wire fraud in

violation of 18 U.S.C. § 1343. He appeals, claiming a fatal variance between the

proof adduced at trial and the conduct charged in the indictment. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

      Pritchard was in the business of brokering sales of aircraft and aircraft

parts. The indictment charged him with wire fraud in connection with agreements

he made with six different individuals. 1 The evidence adduced at trial, however,

was that five of the agreements were with corporations, which were only

represented by the named individuals. Furthermore, in three of the transactions

(Counts One, Two and Three) the indictment charged Pritchard with claiming to

own the aircraft or parts he was offering for sale, 2 but the evidence at trial was

that he only offered to secure the aircraft or parts from third parties. Based on

these alleged variances between the proof at trial and the conduct charged in the

indictment, Pritchard moved at the close of the Government’s case for judgment

of acquittal under Fed. R. Crim. P. 29. The Government conceded the variances


      1
       The gist of the indictment was that Pritchard solicited and received
payment for aircraft or aircraft parts and subsequently failed to deliver same as
agreed or refund monies paid.
      2
        For purposes of this appeal, we generously construe Count Three of the
indictment, as urged by Pritchard, to allege he agreed to sell an aircraft he owned.
It is by no means clear the language of the indictment is so constrained.

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but argued they were harmless. 3 The district court agreed and denied the motion

for judgment of acquittal.

      Pritchard contends the described variances were fatal and require reversal

of his convictions. We review de novo a ruling on a motion for judgment of

acquittal. United States v. McKissick, 204 F.3d 1282, 1290 (10th Cir. 2000). In

particular, we consider whether a variance between proof at trial and conduct

charged in the indictment is fatal and reversible. United States v. Williamson, 53

F.3d 1500, 1512 (10th Cir.), cert. denied sub. nom, 516 U.S. 882 (1995).

Discussion

      Variances between conduct charged in an indictment and proof at trial are

of three kinds: harmless, fatal and fatal per se. Hunter v. New Mexico, 916 F.2d

595, 598-99 (10th Cir. 1990), cert. denied sub. nom, 500 U.S. 909 (1991). We

consider such variances against the constitutional backdrop of the Sixth

Amendment (requiring notice of the charge) and, in the case of federal

prosecutions, the Fifth Amendment (right to indictment by grand jury). Id. at 598.

At one end of the spectrum is the simple variance which occurs “when the

charging terms are unchanged, but the evidence at trial proves facts materially

different from those alleged in the indictment.” Id. (citation and quotation


      3
        Although the Government qualified several of its concessions in the
district court, we treat the concessions as complete for purposes of disposing of
this appeal.

                                        -3-
omitted). 4 To this kind of variance we apply harmless error analysis. Id.

“[C]onvictions generally have been sustained as long as the proof upon which

they are based corresponds to an offense that was clearly set out in the

indictment.” Id. at 599 (quoting United States v. Miller, 471 U.S. 130, 136

(1985)). Along the spectrum a variance becomes fatal and reversible “when the

defendant is prejudiced in his defense because he cannot anticipate from the

indictment what evidence will be presented against him or is exposed to the risk

of double jeopardy.” Id. (citations omitted). The antipode of harmlessness is

where a variance is so severe that it constructively amends the indictment by

altering an element and thus enables conviction for conduct not charged.

Variances of this type are unquestionably fatal and reversible per se. Id.

Although Pritchard claims the described variances were fatal, he does not

explicitly claim they were fatal per se. 5 In any event, it does not appear they are

fatal at all.

       The gravamen (indeed, the elements) of each offense as charged in the

indictment was that Pritchard:


       We assume, without deciding, that the variances identified in this case are
       4

material.

       As to the variances related to Counts One, Two and Three, Pritchard
       5

claims he was prejudiced in the preparation of his defense. (Appellant’s Br. at
13.) As to the remaining counts, he simply claims the evidence at trial varied
from the conduct charged in the indictment and, as a result, he was denied his
constitutional right to notice of the charges against him. (Id. at 16.)

                                         -4-
      1)     devised and intended to devise a scheme

             a)     to defraud, and

             b)     to obtain money by means of materially false and fraudulent

                    pretenses and representations, and

      2)     in furtherance of the scheme, induced wire transfers of money to his

             account. 6

(R. Vol. I at Doc. 1).

      Allegations in the indictment as to the means by which Pritchard carried out

his scheme (i.e., whether by claiming to own the property he offered for sale or to

broker it for another) are surplusage. “A part of the indictment unnecessary to

and independent of the allegations of the offense proved may normally be treated


      6
       Instruction No. 19 tracks the essential elements of the offense charged in
the indictment. Notably absent is any reference to whether Pritchard held himself
out as owning or brokering the property subject to sale or whether the victims
were corporations or individuals. (R. Vol. I at Doc. 65.)

      Instruction No. 18 quotes, in pertinent part, the statute under which
Pritchard was charged:

      Whoever, having devised or intending to devise any scheme or
      artifice to defraud, or for obtaining money or property by means of
      false or fraudulent pretenses, representations, or promises, (and)
      transmits or causes to be transmitted by means of a wire, radio or
      television communication in interstate . . . commerce, any writings,
      signs, signals, pictures, or sounds for the purpose of executing such
      scheme or artifice . . . [.]

(Id.) (parenthetical & ellipsis in original); 18 U.S.C. § 1343.

                                         -5-
as a useless averment that may be ignored.” Miller, 471 U.S. at 136 (quotations

omitted). 7 See also United States v. Smith, 838 F.2d 436, 439 (10th Cir. 1988)

(“proof is not required of everything alleged in the indictment”), cert. denied, 490

U.S. 1036 (1989); United States v. Harper, 579 F.2d 1235, 1239 (10th Cir.)

(“When the language of the indictment goes beyond alleging the elements of the

offense, it is mere surplusage and such surplusage need not be proved.”), cert.

denied, 439 U.S. 968 (1978). This being so, it follows, a fortiori, that variation in

the proof at trial of the means employed to carry out the scheme to defraud is not

generally fatal.

      So, too, with allegations in the indictment as to the victims of Pritchard’s

scheme. The charged offense does not require an identified victim as an element.

Cf. Harper at 1235 (“Proving beyond a reasonable doubt that a specific person is

the principal is not an element of the crime of aiding and abetting. It is not even

essential that the identity of the principal be established. The prosecution only

need prove that the offense has been committed.”) (citations omitted). It


      7
       We distinguish United States v. Adams, 778 F.2d 1117 (5th Cir. 1985), a
case Pritchard cites. In Adams, the Fifth Circuit held that proof of false address
and false name presented in a firearm purchase prosecution impermissibly
broadened an indictment that charged only furnishing a false name as the basis of
the crime. Id. at 1124. Here, the basis of the crime is a scheme to defraud by
inducing wire transfer of monies in exchange for property. Whether Pritchard
held himself out as the owner or broker of the property for sale does not alter the
gravamen of the offense. For like reasons, Adams is inapposite to variances in
proof of the victims.

                                         -6-
therefore follows that variation between the victim named in the indictment and

that proved at trial, particularly when the variation is of the marginal sort

presented here, is likewise harmless.

      Pritchard alternatively claims the described variances prejudiced him in the

preparation of his defense (Counts One, Two and Three) and deprived him of

notice of the charges against him (Counts Four, Five, Six, Seven and Eight).

However, he provides no basis for these claims. Indeed, it is difficult to identify

prejudice or lack of notice when Pritchard was alerted to the variances in

discovery. (R. Vol. V at 541.) Since he does not claim exposure to the risk of

double jeopardy, we need not discuss its effect.

      Accordingly, we AFFIRM the decision of the district court.


                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge




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