Lexis Nexis - Case Brief

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Law School Case Brief

Berger v. United States - 295 U.S. 78, 55 S. Ct. 629 (1935)


Although an indictment charges a conspiracy involving several persons and the proof establishes the conspiracy against some of them only, the variance is not material. But several circuit courts of appeals have held that if the indictment charges a single conspiracy, and the effect of the proof is to split the conspiracy into two, the variance is fatal. Thus where one large conspiracy is charged, proof of different and disconnected smaller ones will not sustain a conviction. This view, however, ignores the question of materiality, and should be so qualified as to make the result of the variance depend upon whether it has substantially injured the defendant.


Petitioner was indicted in a federal district court charged with having conspired with other persons named in the indictment to utter counterfeit notes, with knowledge that they had been counterfeited. Petitioner was convicted for conspiracy even if the evidence tended to establish two conspiracies. Petitioner filed a motion to dismiss the indictment on the ground that the evidence was insufficient.


Is the variance between the indictment charges and the proof of conspiracy material in petitioner’s conviction?




The court of appeals, affirming the judgment, held that the variance between the allegations of the conspiracy count and the proof were not prejudicial; and that the conduct of the prosecuting attorney, although to be condemned, was not sufficiently grave to affect the fairness of the trial.

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