UNITED STATES OF AMERICA, PETITIONER V. JAMES RUAL MILLER

   No. 83-1750

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   QUESTION PRESENTED
   Opinion below
   Jurisdiction
   Statement
   Summary of argument
   Argument
      The Fifth Amendment right to indictment by a
      grand jury does not support reversal of a conviction
      on the ground that the fraudulent scheme proved by
      the government at trial was narrower than the
      description of the scheme contained in the indictment
      A. Applicable precedent establishes that the
         government's proof at trail need not match the
         allegations in the indictment when the effect of
         any disparity is merely to narrow the charges
         against a defendant
      B. The court of appeals was not bound to reverse
         respondent's convictions on the basis of this
         Court's decisions in Ex parte Bain and Stirone
         v. United States
      C. The Court should take this opportunity to
         overrule Ex parte Bain expressly
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-8a) is reported
at 715 F.2d 1360.  A modification to that opinion (Pet. App. 9a-10a)
is reported at 728 F.2d 1269.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 13,
1983.  A petition for rehearing was denied on March 21, 1984 (Pet.
App. 9a-10a).  The petition for a writ of certiorari was filed on
April 27, 1984, and was granted on October 1, 1984 (J.A. 9).  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1).

                          QUESTION PRESENTED

   Whether the Fifth Amendment right to be held to answer only on
indictment by a grand jury requires that a court set aside a mail
fraud conviction when the fraudulent scheme proved by the government
at trial is narrower than the scheme alleged in the indictment.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of California, respondent was convicted on two
counts of mail fraud, in violation of 18 U.S.C. 1341.  He was
sentenced to concurrent terms of two years' imprisonment on each
count.

   1. The evidence at trial showed that respondent was the owner of
San Francisco Scrap Metals, Inc., a company that regularly purchased
scrap wire and stripped, baled, and resold it.  /1/ On July 2, 1981,
respondent increased the insurance coverage for his business from
$50,000 to $150,000 for the two-week period ending July 15, 1981.  On
the morning of July 15, 1981, respondent reported that his business
had been burglarized the previous evening.  He informed police that
two trucks and 201,000 pounds of copper wire had been stolen.
Respondent subsequently mailed to Aetna Insurance Company a proof of
loss that represented, inter alia, that he had lost 201,000 pounds of
copper wire as a result of the burglary.  Respondent received $100,000
from Aetna in compensation for the loss, $50,000 of which was sent to
him through the mail.  Pet. App. 2a-3a.

   The evidence indicated that respondent had inflated the amount of
copper he reported to Aetna as stolen.  Respondent's account of the
source of the allegedly stolen copper did not coincide with the facts.
 On July 20 respondent reported to the insurance adjuster that the
missing copper had been purchased from L.K. Comstock, Inc., and from
Kingston Electric.  Kingston Electric in fact had sold a quantity of
copper to respondent's company, but the latter had resold a similar
quantity of copper to Battery Salvage Company prior to the burglary.
Respondent contended that the copper sold to Battery Salvage had been
purchased from Brayer Electric.  However, neither Brayer Electric nor
L.K. Comstock had sold respondent's company the copper he claimed to
have purchased from them.  Pet. App. 3a.  Several of respondent's
employees who were working on the day of the alleged burglary
testified that there was "no way" respondent had anything close to
201,000 pounds of copper on hand at that time.

   2. The indictment charged respondent with three counts of mail
fraud, in violation of 18 U.S.C. 1341.  Count one was based on
respondent's placement of the proof of loss in the mail, and count two
was based on his causing the mailing of the $50,000 check from Aetna.
Count three, which was based on the other $50,000 check, was dismissed
on the government's motion before trial.

   The scheme alleged in each count of the indictment was described in
paragraphs one through seven of count one.  Those paragraphs alleged,
inter alia, that it was a part of the scheme that respondent knew of
the burglary and consented to it for the purpose of obtaining the
insurance proceeds and that it was also a part of the scheme that he
grossly inflated the amount of copper allegedly taken during the
burglary.  /2/

   At trial, the government presented evidence that the alleged
mailings had taken place and that respondent had grossly inflated the
amount of copper taken when he submitted the proof of loss to Aetna.
The government did not, however, produce evidence proving that
respondent knew in advance about the burglary and consented to it.  At
the close of the government's evidence, the prosecutor moved to strike
the "false burglary" allegation from the indictment.  Respondent
opposed the motion on the ground that the "false burglary" was part of
the scheme alleged in the indictment.  The court denied the
government's motion to strike.

   Respondent then moved for a judgment of acquittal on the ground
that the government had failed to prove that there was any scheme and
artifice to defraud.  The court denied that motion.  See J.A. 5.
Respondent renewed his motion at the close of all the evidence,
contending that, since the government had failed to prove consent to
the burglary, there was insufficient evidence to support the "unitary,
single scheme and artifice alleged;" according to respondent, this gap
in proof amounted to a "fatal variance." Id. at 6.  The court reserved
a ruling on the motion (ibid.).  The court instructed the jury that
the government was required to prove only one or more of the acts
charged in the indictment in order to show the existence of the
scheme.  The jury rendered a guilty verdict on both counts.

   Following trial, respondent renewed his motion for acquittal,
contending that the government had failed to prove "certain essential
elements of the offense alleged in the indictment," i.e., the
allegations in paragraphs three and six of count one, relating to
false burglary (J.A. 7).  The court denied the motion (id. at 1).

   3. The court of appeals vacated respondent's convictions (Pet. App.
1a-8a).  Citing a standard it had articulated in United States v.
Mastelotto, 717 F.2d 1238 (9th Cir. 1983), the court concluded that
respondent's convictions could not stand because the petit jury
convicted him on the basis of a scheme to defraud Aetna by inflating
the amount of the claimed loss, while the grand jury had indicted on
the basis of a scheme consisting of both the inflated claim and
respondent's knowing consent to the burglary.  The court opined that
"(t)he grand jury may well have declined to indict (respondent) simply
on the basis of his exaggeration of the amount of his claimed loss"
(Pet. App. 7a).  The court initially characterized respondent's
convictions as "predicated on a substantially narrower scheme than
that pleaded in the indictment" (J.A. 8;  715 F.2d at 1363).  On
rehearing, the court modified its opinion to characterize respondent's
convictions as "predicated on a substantially different scheme from
that pleaded in the indictment" (Pet. App. 8a, 10a).

                          SUMMARY OF ARGUMENT

   A. The court of appeals erred in holding that respondent's
convictions could not stand because the government's proof at trial
failed to address one feature -- advance knowledge of, and consent to,
the burglary -- of the scheme described in the indictment.  This Court
long ago held that the government's failure to prove at trail every
feature of a fraudulent scheme alleged in the indictment does not
violate the Fifth Amendment right to be held to answer only on
indictment by a grand jury.  Salinger v. United States, 272 U.S. 542,
548-549 (1926).  Consistent with this holding, every court of appeals
has concluded that narrowing of charges to fit the proof at trial does
not constitute a violation of a defendant's right to be tried for the
crime for which he was indicted, so long as the remaining allegations
state an offense.  Fed. R. Crim. P. 7(c)(1), which provides for
allegation in a single count that an offense was committed "by one or
more specified means," implicitly recognizes the validity of those
holdings.

   This well-established principle conforms to the realities of the
criminal process.  As a practical matter, it is not uncommon that the
prosecution will be unable to prove each and every allegation
contained in an indictment, even though it is able to prove all the
elements necessary to conviction of the offense charged.  In general,
indictments are drafted broadly in order to leave room for
contingencies of proof.  However, the prosecutor may be unable for
various reasons to introduce at trial all the evidence that was before
the grand jury, which may have heard hearsay or considered illegally
seized evidence, for example.  In addition, although the grand jury
may have found probable cause to believe certain allegations to be
true, the prosecutor may be unable to satisfy the more exacting trial
standard of proof of those allegations beyond a reasonable doubt.
Finally, narrowing of charges cannot prejudice a defendant, since the
proof at trial is by definition wholly encompassed within the
allegations of the indictment.

   Here the indictment charged that respondent engaged in a fraudulent
scheme that had two features -- a knowing burglary and inflation of
the amount of copper on hand at the time of the burglary.  At trial,
the government proved the latter feature, but not the former.  Under
Salinger and cases that have followed it, and in conformity with the
policies underlying Fed. R. Crim. P. 7(c)(1), this narrowing of the
charges did not violate respondent's right to be indicted by a grand
jury.

   B. The court of appeals erred in relying on Ex parte Bain, 121 U.S.
1 (1887), a decision that has been limited to its facts.  Stirone v.
United States, 361 U.S. 212 (1960), also cited by the court of
appeals, has no proper application because it involved a broadening,
rather than a narrowing, of the charges in an indictment.

   C. In any event, we believe Bain is no longer good law and should
be overruled expressly.  The Court held in Bain that amendment of an
indictment was improper because it was impossible to know whether the
grand jury would have indicted on the basis of the narrower charges
proved at trial.  But the purposes of an indictment are to screen
against unwarranted prosecutions and to provide notice to a defendant
of the charges against him.  Once the indictment is handed down, the
grand jury's role ends.  And once a conviction has been obtained,
concerns about the grand jury's screening function should likewise be
at an end.  Bain in effect reverses the established roles of the grand
jury and the petit jury by holding that the latter's finding beyond a
reasonable doubt that the defendant committed the offense named in the
indictment may be overturned by indulging in speculation about whether
the grand jury would have declined to find probable cause on the basis
of the same evidence considered by the petit jury.

   Bain has led to considerable confusion in the lower courts, which
have had to expend much energy attempting to reconcile Bain with
later, fundamentally inconsistent decisions of this Court.  Bain has
led courts to apply very different standards to amendments (or
"constructive amendments"), on the one hand, and variances, on the
other, despite the substantial conceptual overlap between, and the
congruity of interests protected by, the two doctrines.

   The Fifth Amendment right to be indicted by a grand jury shields a
defendant from being convicted of a crime with which he was never
charged.  We do not deny that this is a significant right.  But we
submit that the interests served by that right are fully satisfied if
it can be said that a defendant has been tried for the offense named
in the indictment and that he has not suffered substantial prejudice
as a result of any deviations between allegations contained in the
indictment and the proof presented at trial.  The proof at trial must
establish the elements of the offense charged and must relate to the
same general complex of facts described in the indictment.  Beyond
that basic requirement, any deviation from the allegations of the
indictment (whether it be characterized as an amendment or as a
variance) should lead to reversal of a conviction only if it can be
shown that the defendant suffered substantial prejudice as a result of
that deviation.

   Here, the prosecution proved the elements of the mail fraud offense
with which respondent was charged, and the proof at trial related to
the series of events described in the indictment, i.e., respondent's
efforts to obtain from the insurance company money to which he was not
entitled in connection with the alleged burglary.  Respondent could
not have suffered any prejudice from the government's failure to
present proof addressed to one feature of the charged fraudulent
scheme.  The court of appeals therefore should have affirmed
respondent's convictions.

                               ARGUMENT

 THE FIFTH AMENDMENT RIGHT TO INDICTMENT BY A GRAND JURY DOES NOT
SUPPORT REVERSAL OF A CONVICTION ON THE GROUND THAT THE FRAUDULENT
SCHEME PROVED BY THE GOVERNMENT AT TRIAL WAS NARROWER THAN THE
DESCRIPTION OF THE SCHEME CONTAINED IN THE INDICTMENT

   This case concerns the extent to which the Fifth Amendment requires
correspondence between the allegations contained in an indictment and
the proof presented at trial.  Respondent was indicted on three counts
of mail fraud and was convicted by a jury on two of those counts.
There is no dispute that the evidence offered by the government at
trial showed beyond a reasonable doubt that respondent in fact
violated the mail fraud statute.  The prosecution demonstrated that
respondent engaged in a fraudulent scheme to obtain money not due him
by submitting an inflated insurance claim for the value of copper
allegedly stolen from his business and that the mails were used in
furtherance of that scheme.  The proof presented at trial
unquestionably fell within the scope of the description of the scheme
contained in the indictment, which included the allegation that
respondent submitted an inflated insurance claim.

   The court of appeals nevertheless held that respondent's
convictions could not stand because the government's proof at trial
failed to address one other feature of the scheme described in the
indictment -- advance knowledge of, and consent to, the burglary.  The
court based that holding on its reading of the Fifth Amendment right
to be held to answer only on indictment by a grand jury.  In
concluding that respondent's convictions must be vacated, the court
reasoned that "(t)he grand jury may well have declined to indict
(respondent) on the basis of his exaggeration of the amount of his
claimed loss," citing United States v. Mastelotto, 717 F.2d 1238, 1250
(9th Cir. 1983) (Pet. App. 7a).  The court also invoked Mastelotto for
the proposition that "the petit jury must find that the defendant
participated in the overall scheme alleged by the grand jury because
the court could not be certain that the grand jury would have indicted
on the basis that the defendant participated in only part of the
scheme" (Pet. App. 6a).

   The court of appeals also relied (Pet. App. 6a) on the statement in
Mastelotto (717 F.2d at 1248-1249) that a defendant's Fifth Amendment
right to be tried for a crime for which he was previously been
indicted by a grand jury compels the conclusion that "(a) defendant
cannot be convicted of a count charging participation in a fraudulent
scheme Y where the grand jury indicted based on his participation in a
fraudulent scheme X, even if the schemes themselves overlap or are
concentric" (emphasis added).  In apparent reliance on the Mastelotto
court's reference to "concentric" schemes, the court in this case held
that respondent's convictions must be vacated because the government's
proof of respondent's fraudulent scheme, though falling entirely
within the bounds of the description in the indictment, was in one
respect narrower than that description.

   In so holding, the court of appeals departed from decisions of this
Court and of every court of appeals that hold that the evidence at
trial need not match the allegations in the indictment when, as here,
the effect of any disparity is to narrow the charges against a
defendant.  Ex parte Bain, 121 U.S. 1 (1887), a decision on which the
court of appeals relied heavily in both this case and Mastelotto, does
not require the result reached below.  But even if Bain were not
distinguishable, we believe it is no longer good law.  The reasoning
in Bain reflects a misconception of the purpose of the Fifth Amendment
and the role of the grand jury in the criminal process.  Bain has
generated persistent confusion in the lower courts.  In our view, it
would be appropriate for the Court to take this opportunity expressly
to overrule Bain.

 A. Applicable Precedent Establishes That The Government's Proof At
Trial Need Not Match The Allegations In The Indictment When The Effect
Of Any Disparity Is Merely To Narrow The Charges Against A Defendant

   In Holding that respondent's convictions must be vacated because
the government did not produce evidence at trial of every feature of
the fraudulent scheme described in the indictment, the court of
appeals disregarded a uniform line of authority from this Court and
every court of appeals.  Those decisions make clear that the proof the
government presents at trial need not match the allegations in the
indictment when, as here, the effect of any disparity is to narrow the
charges against the defendant.  Such a narrowing of the charges does
not in any way interfere with the defendant's Fifth Amendment right to
be held to answer only on indictment by a grand jury.  As Professor
Wright has explained, "a portion of an indictment that the evidence
does not support may be withdrawn from the jury, and this is not an
impermissible amendment, provided nothing is thereby added to the
indictment, and the remaining allegations charge an offense." 1 C.
Wright, Federal Practice and Procedure Section 127, at 422 (2d ed.
1982).

   1. Decisions of this Court provide the foundation for the
"ameliorating doctrine" described by Professor Wright (ibid.).  In
Salinger v. United States, 272 U.S. 542 (1926), the Court held that
narrowing of the charges at trial in that mail fraud case did not in
any way violate the defendant's Fifth Amendment rights.  The
indictment in Salinger charged a scheme to defraud that was "manifold
in that it comprehended several relatively distinct plans for fleecing
intented victims" (272 U.S. at 548).  The trial court withdrew from
the jury all of the plans except one, on the ground that they were
without support in the evidence.  This Court rejected the defendant's
challenge to the withdrawal of part of the charge;  it held that
failure of the evidence to support all but one of the plans "did not
work an amendment of the indictment and was not even remotely an
infraction of the constitutional provision that 'no person shall be
held to answer for a capital or otherwise infamous crime unless on a
presentment or indictment of a grand jury" (id. at 549).  /3/ Salinger
is controlling here.  /4/

   Shortly after it decided Salinger, the Court again held that the
prosecution need not prove every allegation contained in an
indictment.  In Ford v. United States, 273 U.S. 593 (1927), the
indictment charged a conspiracy to smuggle liquor in violation of
several federal statutes and in violation of a treaty;  in fact, the
treaty did not create any offense against the law of the United
States.  The Court observed that "that part of the indictment
(referring to violation of the treaty) is merely surplusage and may be
rejected" (id. at 602).  The Court rejected the defendants' claim that
the trial court's willingness to disregard the allegation that the
conspiracy would violate the treaty amounted to an impermissible
amendment of the indictment;  in the Court's view, the trial court's
action constituted "merely a judicial holding that a useless averment
is innocuous and may be ignored" (ibid.).

   A similar issue arose in a somewhat different context in United
States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).  In that Sherman
Act case, the defendants alleged, inter alia, a "fatal variance" (id.
at 248) between the agreement charged in the indictment and the
agreement proved at trial.  They asserted that the government had
failed to prove the allegation that they had falsified price
quotations published in trade journals, which they characterized as
"an integral and essential part of the plan as charged" (id. at 249).
Defendants took the position that the discrepancy between the
allegations and the proof at trial violated their Sixth Amendment
right to notice of the charges against them.  The Court rejected
defendants' claim, noting that use of trade journals was only one of
several alleged means by which the objectives of the conspiracy were
to be accomplished.  The Court stated (310 U.S. at 250):  "A variation
between the means charged and the means utilized is not fatal.  And
where an indictment charges various means by which the conspiracy is
effectuated, not all of them need be proved."

   The Court reiterated in Kotteakos v. United States, 328 U.S. 750
(1946), that the prosecution need not prove at trial every allegation
contained in the description of a conspiracy in an indictment.  The
Court held in Kotteakos that, in the circumstances of that case, the
defendants' rights had been substantially prejudiced when both the
indictment and the jury instructions charged a single conspiracy, but
the evidence at trial showed eight or more separate conspiracies.  The
Court was careful to observe, however, that there was leeway for cases
in which "proof may not accord with exact specifications in
indictments" (id. at 773).  The Court explained (id. at 773-774 n.29):

      It is common approved practice, in charging a conspiracy, to
      name all who may be reached with process and whom it is
      anticipated the proof will connect with the scheme, although in
      most instances whether it will so turn out for each defendant
      can be only problematical.  If failure to substantiate the
      charge as to one or more were to change the identity of the
      crime charged, so as to require reindictment and retrial for the
      others, the law of conspiracy would be a dead letter.

   The Court made a similar point in Turner v. United States, 396 U.S.
398, 419-421 (1970).  There the Court indicated that a reviewing court
must uphold a conviction if the evidence is sufficient to prove one,
but not all, of several alternative means of committing an offense
that are charged in the indictment.  /5/ The court considered a count
of an indictment alleging that Turner knowingly purchased, dispensed,
and distributed heroin not in or from the original stamped package.
The evidence at trial was sufficient to establish that Turner
knowingly distributed heroin, but not necessarily that he purchased or
dispensed it.  The Court upheld Turner's conviction, noting (id. at
420) that "(t)he general rule is that when a jury returns a guilty
verdit on an indictment charging several acts in the conjunctive, * *
* the verdict stands if the evidence is sufficient with respect to any
one of the acts charged." /6/

   The courts of appeals have followed the lead of these Supreme Court
decisions.  Every court of appeals has concluded that narrowing of
charges to fit the proof at trial does not violate a defendant's right
to be tried for the crime for which he was indicted, so long as the
remaining allegations state an offense.  /7/ The courts of appeals
also have agreed on the more specific proposition that the government
need not prove all of the means or objects alleged in connection with
a scheme to defraud or a conspiracy.  /8/

   The Federal Rules of Criminal Procedure support the view that the
government should be able to narrow charges at trial.  Fed. R. Crim.
P. 7(c)(1) states that "(i)t may be alleged in a single count that the
means by which the defendant committed the offense are unknown or that
he committed it by one or more specified means." The provision was
"intended to eliminate the use of multiple counts for the purpose of
alleging the commission of the offense by different means or in
different ways." Fed. R. Crim. P. 7(c)(1) advisory committee note.
See also Sanabria v. United States, 437 U.S. 54, 66 n.20 (1978) ("A
single offense should normally be charged in one count rather than
several, even if different means of committing the offense are
alleged.").  It would be quite inconsistent to encourage the inclusion
in a single count of alternative means by which an offense may have
been committed and at the same time to penalize the government by
reversing a conviction whenever it fails to prove each and every one
of the means alleged.  Indeed, it is difficult to imagine that the
drafters of Rule 7 ever would have contemplated that a failure of
proof with respect to one of several means alleged in a count could
lead to reversal of a conviction.

   2. The principle that the Fifth Amendment does not preclude the
narrowing of charges at trial is entirely consistent with the
realities of the criminal process.  As a practical matter, it is not
uncommon that the government will be unable to prove at trial each and
every allegation contained in the indictment.  See, e.g., United
States v. Heimann, 705 F.2d 662, 666 (2d Cir. 1983) ("proof at trial
need not, indeed cannot, be a precise replica of the charges contained
in an indictment");  United States v. Lemire, 720 F.2d 1327, 1344
(D.C. Cir. 1983), cert. denied, No. 83-1413 (June 4, 1984).
Indictments normally are drafted broadly in order to encompass all of
the proof the government hopes to present at the time of trial.  It is
particularly likely in complex fraud or conspiracy cases that
indictments will include a wide range of allegations.  Indeed, it is
common practice to draft indictments conjunctively, e.g., to allege
that the scheme in which a defendant was involved had objects A and B
and C, even when it is uncertain whether it will be possible to prove
all three objects under the higher standard of proof at trial.  See
United States v. Jordan, 626 F.2d 928, 930 (D.C. Cir. 1980) ("it is
not an infrequent practice in mail fraud cases to allege the full
scheme to allow for contingencies of proof").  And see, e.g., United
States v. West, 549 F.2d 545, 547 n.1 (8th Cir.), cert. denied, 430
U.S. 956 (1977) (noting that the first ten-and-one-half pages of the
indictment in that case detailed the acts of defendants that comprised
the scheme and artifice to defraud).  /9/

   In many cases, for a variety of reasons, less than all of the
anticipated evidence is eventually introduced by the government at
trial.  A grand jury witness may change his story at or prior to trial
or decide at the last minute not to cooperate further with the
government.  Witnesses may die or disappear between indictment and
trial, or the prosecutor may decide that a grand jury witness would
not be effective at trial.  Even apart from such developments, the
prosecutor may simply conclude that the available proof is not
sufficently convincing to establish some aspect of the charged scheme
or that the attempt to prove that aspect would be unduly
time-consuming, confusing, or distracting from the proof of the main
core of the offense.  Rules of pleading and proof that impel the
prosecutor nevertheless to pursue such alternative theories of guilt
to avoid a result like that in this case are hardly in the interests
of fair administration of criminal justice, nor are they in the
interests of defendants as a class.

   The different evidentiary standards applicable at the grand jury
stage and the trial stage make it all the more likely that the
allegations of an indictment frequently will encompass more than the
government is in the end able to prove at trial.  The grand jury's
role as an investigative body allows it to consider a wide range of
evidence, much of which may not be admissible at a subsequent trial.
Thus, the grand jury is free to consider hearsay testimony, e.g., from
informants or from government agents who summarize the results of
thier investigations for the grand jury.  See Costello v. United
States, 350 U.S. 359 (1956).  It may hear incompetent or irrelevant
evidence.  See Blair v. United States, 250 U.S. 273, 282 (1919).  The
grand jury may even consider evidence procured in an allegedly
unconstitutional manner.  See United States v. Calandra, 414 U.S. 338
(1974);  United States v. Blue, 384 U.S. 251, 255 (1966).  /10/ All of
this evidence may well be ruled inadmissible at trial.  Nevertheless,
the grand jury is free to include in the indictment allegations based
on such evidence if it concludes there is probable cause to believe
those allegations.  If the prosecutor is unable subsequently to locate
admissible evidence that substitutes fully for the evidence before the
grand jury, some allegations of the indictment may be left unproved at
the end of trial.  Thus, there will not be a perfect match between the
indictment and the proof at trial, even though the latter is entirely
sufficient to prove beyond a reasonable doubt that the defendant
committed the offense charged.

   The likelihood of such a result is also increased by the different
standards of proof that govern the determinations of the grand jury
and the petit jury.  The grand jury brings charges on the basis of a
probable cause determination, while the petit jury must find beyond a
reasonable doubt that the defendant committed the offense charged.
For that reason alone, it is probable that there will be some
discrepancy between what is alleged in the indictment and what the
government can prove at trial.

   At the same time, it is most unlikely that narrowing of charges at
trial would ever result in any prejudice to a defendant.  /11/ In such
cases (as in this one), everything that is proved at trial was
encompassed within the allegations of the indictment.  A defendant
therefore receives advance warning of everything the government may
attempt to prove at trial and is in a position to prepare his defense
on that basis.  The prosecution's failure to introduce evidence
sufficient to prove some of the allegations contained in the
indictment can only benefit a defendant by freeing him from the need
to respond to those allegations.

   In fact, it is the court of appeals' holding that would cause real
prejudice to defendants.  That holding indicates that narrowing of
charges at trial may well result in loss of convictions (as in this
case).  Prosecutors presumably will react by introducing evidence in
support of every allegation in an indictment, even though they may
believe that the evidence will prove legally or factually insufficient
to sustain a conviction on a particular theory.  Such a course will
protect any conviction even if the prosecutor was correct in his
assessment of partial insufficiency.  See cases cited at page 15 note
5, supra.  Alternatively, prosecutors may elect to confine
descriptions in indictments to minimal allegations, i.e., those they
believe with some certainty that they will be able to prove beyond a
reasonable doubt at trial.  The result would be "barebones"
indictments that would provide the least possible notice to defendants
of the nature of the charges against them but that would apparently
limit or eliminate the risk of a fatal variation between indictment
and proof.  Cf. Stirone v. United States, 361 U.S. 212, 218 (1960).
Finally, prosecutors may attempt to avoid the consequences of the
decision below by drafting indictments so that various features of a
scheme would be alleged in separate counts (e.g., fraud based on a
scheme involving inflation of the value of copper under one count, and
fraud based on a different scheme involving consent to burglary under
another).  That sort of cumbersome and multiplicitous pleading surely
would be an undesirable practice.

   In view of these practical considerations, it is most unlikely that
the framers of the Fifth Amendment would have meant to foreclose the
possibility that charges in an indictment could be narrowed at trial;
and it would be most undesirable to adopt such a view.  The rule
stated by this Court in Salinger is unquestionably sound.

   3. This case clearly fits within the principle that narrowing of
charges at trial does not constitute a violation of the Fifth
Amendment.  The indictment in this case alleged both that it was a
part of the fraudulent scheme that respondent had advance knowledge of
the burglary he reported on July 15, 1981, and consented to it for the
purpose of obtaining the insurance proceeds, and also that it was a
part of the scheme that he grossly inflated the amount of copper
alledgedly taken during the burglary.  See pages 3-4 not 2, supra.
Each was simply a means of obtaining from the insurance company money
to which respondent was not entitled -- the real essence of the
offense.  At trial the government proved that respondent had grossly
inflated the amount and value of copper allegedly taken during the
burglary, but not that he had advance knowledge of, and consented to,
the burglary.  Thus, what was proved at trial fell entirely within the
description of the scheme in the indictment, although it was narrower
in one respect than the whole of what was alleged.

   In an apparent effort to distinguish this case from Salinger and
cases that have followed it, the court of appeals described the scheme
the government proved at trial here as "substantially different" from
the scheme pleaded in the indictment (Pet. App. 8a).  But the only
"difference" was in the scope of the scheme.  The scheme proved at
trial was merely a subset of that described in the indictment;  it was
the very same scheme, minus one feature (knowledge of, and consent to,
the burglary).  /12/

   The court of appeals' characterization of the proof at trial as
establishing a scheme "substantially different" from that described in
the indictment cannot change the fact that this case involves only a
narrowing of the charges.  Of course, the "substantially different"
characterization could be attached to many cases in which the xcope of
the proof at trial is narrower than the scope of the description in
the indictment.  In Salinger itself the Court could have concluded
that the government's failure to prove all but one of the alleged
plans for defrauding the victims of the mail fraud rendered the scheme
proved at trial "substantially different" from that alleged in the
indictment.  Certainly it was at least as "different" as in the
present case.  /13/ But there is no indication that such a
characterization would have changed the result in Salinger or in any
of the other cases in which this Court and others have concluded that
narrowing of charges at trial does not violate the Fifth Amendment.
Because the proof at trial in this case merely narrowed the scope of
the scheme charged, it is clear that there was no violation of
respondent's Fifth Amendment right to be held to answer only on
indictment by a grand jury.  /14/

 B. The Court Of Appeals Was Not Bound To Reverse Respondent's
Convictions On The Basis Of This Court's Decisions In Ex parte Bain
And Stirone v. United States

   We have shown in the foregoing discussion that the result reached
by the court of appeals is wholly contrary to sound policy and
practice, as well as to much seemingly well settled authority.  We now
address whether other authority nevertheless compels the result
reached below.  The Ninth Circuit in this case and in United States v.
Mastelotto, 717 F.2d at 1248-1251, based its analysis in large part on
Ex parte Bain, 121 U.S. 1 (1887), and on passages from Stirone v.
United States, supra, that rely heavily on Bain.  However, this case
can be distinguished on its facts from Bain and even more clearly from
Stirone.

   In Bain the cashier and directors of a national banking association
were charged with violated Rev. Stat. Section 5209, which, inter alia,
prohibited directors and cashiers of any banking association from
amking "any false entry in any book, report, or statement of the
association, with intent * * * to injure or defraud the association or
any other company, body politic or corporate, or any individual
person, or to deceive any officer of the association, or any agent
appointed to examine the affairs of any such association * * *." 121
U.S. at 3.  The indictment alleged that the defendants had made false
statements in a report submitted to the Comptroller of the Currency
"with intent to deceive the Comptroller of the Currency and the agent
appointed to examine the affairs of said association * * *" (id. at
4).  The defendants demurred to the indictment, and the demurrer was
sustained (id. at 5).  Then, in response to the government's motion,
the trial court struck from the indictment as surplusage the words
"the Comptroller of the Currency and" (id. at 5, 9).  The trial court
severed the trial of Bain (the cashier) from that of the other
defendants, and Bain was tried and convicted on the indictment as
modified.

   This Court reversed Bain's conviction on the ground that removal of
the reference to the Comptroller of the Currency constituted an
impermissible amendment of the grand jury's indictment, in violation
of the Fifth Amendment.  The Court noted that no authority had been
cited to it that sustained "the right of a court to amend any part of
the body of an indictment without reassembling the grand jury, unless
by virtue of a statute" (121 U.S. at 8).  The Court rejected the trial
court's determination that the grand jury would have handed down the
indictment without the reference to the Comptroller.  It stated (id.
at 9-10):

      (A defendant) can only be tried upon the indictment as found by
      (the) grand jury, and especially upon all its language found in
      the charging part of that instrument.  While it may seem to the
      (trial) court, with its better instructed mind in regard to what
      the statute requires to be found as to the intent to deceive,
      that it was neither necessary nor reasonable that the grand jury
      should attach importance to the fact that it was the Comptroller
      who was to be deceived, yet it is not impossible nor very
      improbable that the grand jury looked mainly to that officer as
      the party whom (Bain) intended to deceive by a report which was
      made upon his requisition and returned directly to him.

The Court went on to suggest that "(i)f it lies within the province of
a court to change the charging part of an indictment to suit its own
notions of what it ought to have been, or what the grand jury would
probably have made it if their attention had been called to suggested
changes, the great importance which the common law attaches to an
indictment by a grand jury * * * may be frittered away until its value
is almost destroyed" (id. at 10).

   This Court subsequently confined Bain to its facts.  In Salinger v.
United States, the Court noted that in Bain "there was an actual
amendment or alteration of the indictment to avoid an adverse ruling
on demurrer, and the trial was on the amended charge without a
resubmission to a grand jury.  The principle on which the decision
proceeded is not broader than the situation to which it was applied."
272 U.S. at 549.  Recently this Court reaffirmed that Bain "was long
ago limited to its facts by Salinger v. United States." United States
v. Villamonte-Marquez, No. 81-1350 (June 17, 1983), slip op. 2 n.2.

   The Court in Ford (273 U.S. at 602) and Salinger (272 U.S. at 549)
distinguished Bain on the ground that it involved an actual physical
alteration of the indictment.  /15/ In addition, the Salinger Court
distinguished Bain on the ground that the amendment in that case was
thought necessary to cure a defective indictment (i.e., to "avoid an
adverse ruling on demurrer").  See United States v. Milestone, 626
F.2d 264, 267 (3d Cir.), cert. denied, 449 U.S. 920 (1980)
(interpreting Bain to apply only to cases in which the unamended
indictment does not charge a crime).  /16/ In this case, there was no
physical alteration of the indictment.  In addition, the indictment
clearly charged the crime of mail fraud and would not have been
subject to dismissal for failure to state an offense.  Thus, while we
doubt that the distinctions between Bain and this case afford a
logical basis for a difference in results (see notes 15-16, supra),
the limitations this Court has heretofore imposed on the authority of
Bain mean that it cannot properly be invoked to justify reversal of
respondent's convictions.

   In Mastellotto and in this case, the court of appeals also cited
Stirone v. United States, a decision of this Court involving a
conviction under the Hobbs Act.  In Stirone, the Court quoted at
length from Bain (see 361 U.S. at 215-218) in support of its
conclusion that the discrepancy between the allegations of the
indictment, on the one hand, and the jury charge and proof at the
trial of Stirone, on the other, amounted to an impermissible
"constructive amendment" of the indictment.  But Stirone is clearly
distinguishable from this case.  There the indictment alleged that
Stirone, by extortion, had obstructed interstate shipments of sand to
a site in Pennsylvania, where the sand was to be used to manufacture
concrete that in turn was to be used to manufacture concrete that in
turn was to be used in construction of a steel-processing plant in
Pennsylvania.  Over Stirone's objection, the trial court permitted the
government to introduce evidence not only that Stirone had obstructed
Pennsylvania-bound shipments of sand, but also that his actions led to
interference with shipments of steel from Pennsylvania to other
states.  The trial court instructed the jury that it could convict on
the basis of Stirone's interference with either interstate movement of
sand into Pennsylvania (as charged in the indictment) or interestate
movement of steel out of Pennsylvania (not mentioned in the
indictment).  361 U.S. at 213-214.

   In reversing Stirone's conviction, the Court noted that "(e)ver
since Ex parte Bain * * * was decided in 1887 it has been the rule
that after an indictment has been returned its charges may not be
broadened through amendment except by the grand jury itself" (361 U.S.
at 215-216).  The Court concluded that interference with commerce is
an essential element of a Hobbs Act offense and cannot be regarded as
surplusage (id. at 218).  According to the Court, in Stirone as in
Bain, "we cannot know whether the grand jury would have included in
the indictment a charge that commerce in steel from a nonexistent
steel mill had been interfered with" (361 U.S. at 219).  The Court
concluded that, in view of the trial proof and jury instructions, the
jury could have convicted Stirone for interference with interstate
commerce in steel, a charge the grand jury never made against him (id.
at 218-219).

   Stirone stands for the proposition that the charges of an
indictment may not be broadened significantly by the proof at trial
and instructions to the jury when those changes involve an essential
element of the crime.  /17/ But, as we explained above, this case
concerns narrowing of the charges in the indictment, not broadening.
Moreover, the discrepancy between the indictment and the proof at
trial in this case cannot be said to go to an essential element of the
mail fraud offense;  rather, it involves only the description of one
feature of the alleged scheme to defraud.  Stirone therefore does not
support the court of appeals' reversal of respondent's convictions.

 C. The Court Should Take This Opportunity To Overrule Ex parte Bain
Expressly

   As we explained in the preceding section, the Court could reverse
the judgment of the court of appeals on the ground that this case is
distinguishable from Bain and Stirone and is governed instead by
Slainger.  However, we believe Bain is no longer good law and that the
better course would be for the Court to take this opportunity
expressly to overrule Bain.  The Court's analysis in Bain rested on a
misconception of the grand jury's role in the criminal process.  The
Court itself appears subsequently to have recognized the weakness of
the reasoning it offered in Bain, and on a number of occasions it has
departed from that decision's apparently rigid prohibition on any
deviation from the allegations of an indictment.  As a result, the
lower federal courts have had to struggle to reconcile Bain with
other, more flexible, decisions of this Court and with the dictates of
common sense.  Despite the fact that this Court has over a period of
years removed all the underpinnings of Bain, the case continues to
generate confusion in the lower courts.

   1. The reasoning articulated by the Court in Bain and applied by
the court of appeals in this case and in Mastelotto does not withstand
scrutiny.  The Court in Bain concluded that removal from the
indictment of the reference to the Comptroller of the Currency
violated the defendant's Fifth Amendment right to indictment by a
grand jury because no court could be certain that the grand jury would
have indicted if it had not considered the defendant's intent to
deceive the Comptroller himself, but only his intent to deceive the
examining agents.  Bain therefore implies that, even if the
prosecution succeeds in proving beyond a reasonable doubt that a
defendant committed the offense charged, any deviation from
allegations of an indictment will be fatal to the conviction if a
court cannot know for certain that the grand jury would have indicted
on the basis of the evidence presented at trial.  The Court's comments
in Bain strongly suggest that a court could never be certain of what
the grand jury would have done in such circumstances, /18/ and
therefore that any deviation from the terms of the indictment will
violate the Fifth Amendment.

   The Bain Court's focus on what the grand jury might have done if it
had been presented with the proof subsequently offered at trial was
erroneous;  indeed, it suggests a significant misperception of both
the purposes served by the Fifth Amendment right to be held to answer
only on an indictment and the role of the grand jury under our system
of criminal justice.  The Fifth Amendment requirement that a criminal
prosecution be preceded by an indictment by a grand jury serves as a
protection against oppressive or unwarranted criminal prosecutions.
Costello v. United States, 350 U.S. at 362.  The grand jury serves a
screening function when it determines whether there is probably cause
to believe that an individual has committed an offense.  An indictment
also provides notice to the defendant of the charges against him, so
that he can prepare a defense.  Russell v. United States, 369 U.S.
749, 763, 766 (1962).  /19/

   Neither of these functions is inherently threatened by the
existence of some difference between the allegations of an indictment
and the proof at trial, or by an actual physical alteration to the
indictment.  For example, there was no suggestion in Bain that the
grand jury had not found probable cause to believe Bain had violated
Rev. Stat. Section 5209 by submitting certain false reports or that he
was not held to answer for that same offense.  Bain unquestionably had
sufficient notice of the charges against him to enable him to prepare
his denfense, since the indictment expressly charged him with an
intent to deceive agents who examined the banking association, as well
as the Comptroller of the Currency.

   In this case, there is likewise no doubt that the grand jury
performed its screening function by finding probable cause to believe
respondent had committed mail fraud in connection with particular
mailings and that he was eventually tried for, and convicted of, that
very offense.  And respondent clearly had sufficient notice of the
charges against him to permit him to prepare his defense, since
everthing the government proved at trial was within the scope of the
description of the fraudulent scheme contained in the indictment.  In
such circumstances, there should be no need for further inquiry into
what the grand jury might have thought or done in a hypothetical
situation (i.e., if it were presented only with the proof the
government eventually offered at trial).

   The Court in Bain appears erroneously to have merged the roles of
the grand jury and the petit jury.  Under our system of criminal
justice those two bodies serve different functions.  The grand jury
makes a preliminary determination that there is probable cause to
believe the defendant has committed a crime -- the necessary predicate
to a criminal prosecution.  The petit jury then makes the
determination whether the government has proved guilt beyond a
reasonable doubt, based on evidence presented at trial.

   In focusing on the possibility that the grand jury might have
chosen not to indict if it had considred only the narrower proof
eventually introduced at trial, the Court in Bain seriously distorted
and confused the respective functions of the grand jury and the petit
jury.  The grand jury performs only the initial functions of screening
on the basis of the low threshold standard of probable cause and
providing notice of the charges;  once the indictment is handed down,
the grand jury's role is complete.  The petit jury then determines
whether the evidence presented at trial is sufficient to establish
guilt beyond a reasonable doubt.  At that point, the indictment serves
to ensure that the defendant is held to answer only for offenses as to
which the grand jury found probable cause.  But the grand jury itself
plays no role in evaluation of the evidence at trial;  that is the
sole responsibility of the petit jury.  And once the petit jury finds
that the evidence presented at trial established beyond a reasonable
doubt that the defendant committed the offense charged, the screening
body's finding of probable cause to believe that offense had been
committed becomes essentially irrelevant.  At that stage the defendant
has had a trial on the merits, in which he presumably enjoyed the
benefit of "strict observance of all the rules designed to bring about
a fair verdict." Costello v. United States, 350 U.S. at 364.  There is
little point in then revisiting an earlier stage to consider whether
some variation on the grand jury process would have yielded a
determination that there was sufficient reasons to put the defendant
through the trial he has already experienced.  See ibid.

   Application of the Bain analysis turns the normal scheme upside
down, elevating the role of the grand jury above that of the petit
jury.  For example, in vacating respondent's convictions, the court of
appeals discounted entirely the petit jury's finding of guilt beyond a
reasonable doubt.  Instead, the court placed decisive weight on
improbable speculation that the grand jury (presumably on the basis of
leniency) might not have made the preliminary determination of
probable cause if it had considered only the evidence that was
presented to the petit jury -- even though there was no reason to
doubt that probable cause to charge respondent must in fact have been
demonstrated by the evidence that was sufficient to convict him.  /20/

   The Bain Court's reliance on speculation about what the grand jury
might have done if it had considered the evidence presented at trial
is particularly anomalous in view of the longstanding reluctance of
courts to inquire into the thought processes of the grand jury.  This
Court has determined that an indictment by a competent and unbiased
grand jury may not be challenged on the basis of the nature of
sufficiency of the evidence on which it is based.  Costello v. United
States, 350 U.S. at 363.  Indeed, a conviction may not be set aside on
the ground that the grand jury had no evidence at all to support the
indictment.  See ibid.; United States v. Calandra, 414 U.S. at 345;
Lawn v. United States, 355 U.S. 339, 349-350 (1958).  Against this
background, it seems wholly irrational to suggest that a conviction
nevertheless ought to be set aside on the basis of speculation about
whether the grand jury would have indicted if it had considered only
competent evidence that the petit jury found sufficient to establish
guilt beyond a reasonable doubt.  /21/

   2. In view of the unsatisfactory nature of the reasoning employed
by the Court in Bain, it is not surprising that that decision has
generated considerable confusion among the lower courts.  That
confusion is rooted in part in the fact that this Court has provided
conflicting signals about the proper reading of Bain and the extent to
which it remains good law.

   Bain itself appears to set out an absolute rule against any
deviation from the allegations in an indictment.  As we noted above
(see page 32 & note 18), the Court in Bain seemed to suggest that a
court could never be sure that a grand jury would have indicted if it
had considered evidence that was in any way different from what it in
fact heard prior to handing down the indictment.  Thus, any deviation
between the allegations in the indictment and the proof at trial
presumably would require reversal of a conviction.  Moreover, the
Court cited with apparent approval cases in which slight drafting
errors -- for example, in a date or a name included in an indictment
-- had led to dismissal of an indictment or reversal of a conviction.
See 121 U.S. at 6-9.

   In several cases decided after Bain, the Court appeared to indicate
that Bain should be read far more narrowly than its sweeping language
would suggest.  As we explained above, the Court in Salinger v. United
States -- the case closest factually to the present case -- purported
to limit Bain to its facts and to permit at least narrowing of the
charges when there was no physical alteration of the indictment (272
U.S. at 549).  And in Ford v. United States -- a case virtually
indistinguishable from Bain -- the Court appeared to indicate (273
U.S. at 602) that the prosecution's failure to prove allegations of an
indictment that could be characterized as "surplusage" would not
violate a defendant's Fifth Amendment rights, despite the Bain Court's
apparent rejection of the trial court's "surplusage" reasoning in that
case (see pages 26-27, supra).  In Berger v. United States, 295 U.S.
78 (1935), the Court did not even cite Bain in discussing the claim
that a conviction must be reversed when the indictment charged a
single conspiracy but the proof at trial showed two separate
conspiracies.  The Court concluded in Berger (295 U.S. at 82) that
reversal would be appropriate in such a case only when the variance in
proof affected the substantial rights of the defendant.  Finally, in
Russell v. United States the Court described Bain as standing for the
proposition that "an indictment may not be amended except by
resubmission to the grand jury, unless the change is merely a matter
of form" (369 U.S. at 770).

   These decisions seemed to suggest that, despite the broad language
of Bain, both variances in proof and actual physical amendments to
indictments might be permissible in a considerable variety of
circumstances.  But not long before its decision in Russell, the Court
decided Stirone v. United States in a manner that appeared at least
partially to resuscitate Bain.  Stirone stated that Bain "has never
been disapproved" (361 U.S. at 217).  /22/ Despite the fact that
Stirone did not involve either an actual physical alteration of the
indictment or an indictment that would have been subject to dismissal,
the Court found Bain to be relevant.  Applying the reasoning of Bain,
the Court concluded that Stirone's conviction must be reversed because
no court could be sure that the grand jury would have been willing to
charge that Stirone's conduct interfered with interstate exportation
of steel (ibid).  Stirone thus appeared to indicate that Bain
continued to be good law.

   In view of this Court's apparently inconsistent statements, it is
not surprising that the lower courts have disagreed about the vitality
of Bain and whether an how it should be limited.  Some courts have
suggested that Bain applies only to cases involving actual physical
alterations to the indictment.  See, e.g., United States v. Heimann,
705 F.2d at 665.  Others have concluded that such a distinction is not
consistent with a practical reading of Bain and that physical
modification is permissible.  See, e.g., United States v. Milestone,
626 F.2d at 269;  Thomas v. United States, 398 F.2d 531, 539-540 (5th
Cir. 1967).  Some courts have suggested that Bain applies only to
cases in which the unamended indictment did not charge a crime.  See,
e.g., United States v. Milestone, 626 F.2d at 267.  /23/ Still other
have described Bain as limited to matters of "substance." See, e.g.
United States v. Kegler, 724 F.2d 190, 193-195 (D.C. Cir. 1983);
United States v. Cina, 699 F.2d 853, 858 (7th Cir.), cert. denied, No.
83-28 (Nov. 28, 1983).  Most courts have satisfied themselves that, in
light of this Court's decisions in Alinger and Ford, Bain could not
preclude narrowing of charges (even though Bain itself appeared to
involve narrowing of the allegations of the indictment).  See cases
cited at page 16 note 7, supra.  But, as in this case, courts
occasionally conclude that the reasoning of Bain requires reversal of
a conviction in a case in which charges have merely been narrowed.

   The lower courts have expended considerable energy in the nearly
impossible task of attempting to define the limits of Bain and to
distinguish it from, or reconcile it with, other decisions of this
Court.  In some cases courts of appeals have spent pages analyzing
Bain and subsequent decisions of this Court and others before
persuading themselves that wholly insubstantial changes in the terms
of an indictment (including, e.g., correction of typographical errors
in dates or slight variations in names) did not warrant reversal of
convictions that were clearly supported by the evidence.  See, e.g.,
United States v. Cina, 699 F.2d at 856-860;  United States v. Bush,
659 F.2d 163, 165-167 (D.C. Cir. 1981);  United States v. Milestone,
626 F.2d at 266-269;  Thomas v. United States, 398 F.2d at 536-540.
The courts of appeals themselves have acknowledged that it is not easy
to reconcile Bain with other relevant authority.  See, e.g., United
States v. Cina, 699 F.2d at 857-858;  United States v. Dawson, 516
F.2d at 801-804;  United States v. Cirami, 510 F.2d 69, 72 (2d Cir.),
cert. denied, 421 U.S. 964 (1975);  Heisler v. United States, 394 F.2d
692, 695-696 (9th Cir.), cert. denied, 393 U.S. 986 (1968) ("the
progeny of Bain are out of joint").

   Moreover, Bain and subsequent decisions of this Court and others
have created an unsatisfactory dichotomy between the standards applied
to "amendments" or "constructive amendments" to an indictment, on the
one hand, and "variances," on the other.  In general, an amendment is
said to occur when the court or the prosecutor makes a physical change
in the language of the indictment, as in Bain.  A constructive
amendment exists when the court submits a case to the jury on a theory
different from that set out in the indictment with respect to what a
reviewing court regards as an essential element of the offense, as in
Stirone.  A variance arises when the evidence offered at trial proves
facts different from those alleged in the indictment.  See Berger v.
United States, supra.  Under the present state of the law, amendments
generally are judged more strictly;  an amendment or constructive
amendment to an indictment is usually held to be cause for automatic
reversal, unless a court concludes that it falls within some exception
to the strict prohibition set out in Bain.  However, a variance
between the indictment and the proof at trial is cause for reversal
only if it affects the defendant's substantial rights (see Berger, 295
U.S. at 82), i.e., if it subjects him to unfair surprise or to the
possibility of further prosecution for the same offense.  See, e.g.,
United States v. Cina, 699 F.2d at 858 (cases suggest that actual
"amendment" of an indictment is prejudicial per se, while a "variance"
between written allegations and proof is amenable to a "materiality"
and "prejudice" analysis).

   This dichotomy in standards makes little sense.  In light of the
substantial conceptual overlap between amendments and variances and
the congruity of interests protected by the two doctrines, it is
difficult to understand why the standards for reversal should be
different, depending on whether a particular case is characterized as
presenting an amendment or a variance.  Indeed, if anything,
amendments should be the preferred course for countenancing a
disparity between the proof at trial and the specifications of the
indictment, since an amendment at least gives the defendant advance
notice of the disparity.  See United States v. Cina, 699 F.2d at 858.
To the extent Bain appears to compel more stringent scrutiny of
amendments to an indictment, it discourages prosecutors from advising
defendants at an early stage that the government's proof will not
match precisely the allegations contained in the indictment.  At the
same time, it provides incentives for a court to submit to the jury
theories that concededly have insufficient support in the evidence --
a practice that presumably could result in significant prejudice to
the defendant.  Thus, the dichotomy between the standards applied to
amendments and variances appears to reverse the incentives that
normally are preferred.

   3. In our view, the best course would be for this Court expressly
to overrule Bain.  The Court should confirm that the Fifth Amendment
right to be held to answer only on indictment by a grand jury does not
require a one-to-one correspondence between the allegations in the
indictment and the proof at trial;  rather, it simply guarantees a
defendant that he will not be forced to trial on a different offense
from that charged by the grand jury.  It would be appropriate for the
Court to explain also that the Fifth Amendment right should not be
defined in terms of speculation about whether the grand jury might
have declined to indict based on evidence subsequently produced at
trial.  An explicit rejection by this Court of the Bain reasoning
should prevent lower courts from concluding in the future (as the
court of appeals did here) that a conviction must be reversed because
the court cannot be certain about what the grand jury might have done
under hypothetical circumstances.

   In place of the Bain reasoning, the Court should limit the purpose
of any retrospective matching of the proof at trial with the
allegations of the indictment to ascertainment whether the defendant
has, in essence, been "heard on the specific charges of which he is
accused." Dunn v. United States, 442 U.S. 100, 106 (1979).  That right
is an important and firmly established one.  See, e.g., id. at
106-107;  Garner v. Louisiana, 368 U.S. 157, 163-164 (1961);  Cole v.
Arkansas, 333 U.S. 196, 201 (1948);  DeJonge v. Oregon, 299 U.S. 353,
362 (1937).  Thus, for example, a defendant's conviction for perjury
committed on one date should not be upheld when he was indicted based
on statements made on another date;  likewise, a defendant charged
with robbing Bank A on Monday should not on the basis of that
indictment be put to trial for robbing Bank B on Tuesday.  In such
cases it can truly be said that the defendant's Fifth Amendment right
not to be tried for an offense unless a grand jury has indicted him
for that offense has been infringed.

   Conversely, the interests served by the right to a grand jury
indictment are fully protected when the defendant is convicted of the
same offense for which he was indicted.  In most cases, of course, it
will be appropriate for a court also to inquire whether a defendant
has suffered substantial prejudice as a result of deveiations between
allegations of the indictment and the proof at trial, although this
inquiry is more closely related to other constitutional rights.

   Whether a defendant has been convicted of the offense for which he
was indicted should be determined in large part by whether the
prosecutor has proved the same elements of an offense as were charged
in the indictment.  Thus, if the grand jury charges the elements of
bank robbery, the prosecutor must prove that the defendant committed
bank robbery, not that he committed, e.g., arson.  In addition, there
must be sufficient correspondence between the description of the
relevant facts in the indictment and the proof at trial, so that it is
clear that, e.g., the defendant is not being tried for a different
bank robbery from the one charged by the grand jury.  In general,
however, there would not be a need for precise correspondence between
the details alleged in the indictment and the proof at trial.  Rather,
it should be enough if the court concludes that the proof at trial
relates to the same general complex of facts as that alleged in the
indictment.

   In evaluating whether the defendant has been convicted of the
offense for which he was indicted, it is helpful to apply principles
used in determining whether the indictment and the proof at trial
would describe separate offenses for double jeopardy purposes.  The
Double Jeopardy Clause of the Fifth Amendment protects a defendant
from being tried more than once for "the same offense." The inquiry in
double jeopardy cases generally is "whether two offenses are
sufficiently distinguishable to permit the imposition of cumulation
punishment." Brown v. Ohio, 432 U.S. 161, 166 (1977).  See also, e.g.,
Sanabria v. United States, 437 U.S. at 69-74;  Braverman v. United
States, 317 U.S. 49, 53 (1942).  If the offense for which a defendant
is convicted at trial is sufficiently similar to that described in the
indictment that double jeopardy would bar successive prosecutions on
the two sets of facts, then it may ordinarily be concluded that the
defendant has been convicted of the offense described in the
indictment.  Of course, this approach corresponds precisely to the
double jeopardy rationale for the right to substantial congruity
between indictment and proof at trial.

   It is clear that under double jeopardy principles the government
could not have convicted respondent of mail fraud involving a scheme
that included both a knowing burglary and inflation of the value of
copper he had on hand and subsequently tried him on new mail fraud
charges involving the same mailings making the same monetary claim of
the same victim but fraudulent only because of inflation of the value
of the co copper.  Thus, respondent was convicted of the same offense
for which he was indicted for purposes of the Fifth Amendment.
Indeed, there would in our submission have been no violation of
respondent's Fifth Amendment right to a grand jury indictment if he
had been indicted based on a fraudulent scheme involving a knowing
burglary and convicted based on proof of a scheme involving inflation
of the value of the allegedly stolen copper.  /24/ That is because the
Double Jeopardy Clause presumably would have barred the government
from first prosecuting respondent for mail fraud based on a knowing
burglary and then prosecuting him for mail fraud (in connection with
the same mailings at issue in the initial prosecution) based on
inflation of the value of the copper, since the two prosecutions would
be for the "same offense."

   It may also be useful to apply principles relating to sufficiency
of the indictment in determining whether a defendant has been
convicted of the offense for which he was indicted.  An indictment
must state "the essential facts constituting the offense charged."
Fed. R. Crim. P. 7(c)(1).  However, an indictment may in addition
contain collateral details that help to describe the offense.  See 1
C. Wright, Federal Practice and Procedure, supra, Section 125, at 386.
 If a particular allegation would not have been necessary to render
the indictment sufficient, the prosecution's failure to prove it at
trial should not be viewed as a violation of the Fifth Amendment right
to indictment by a grand jury.  So long as the prosecution succeeds in
proving the "essential facts" necessary to constitute the offense
charged, any other variation in proof should be without significance
for purposes of the Fifth Amendment.  See, e.g., Ford v. United
States, 273 U.S. at 602 (failure to prove surplusage did not
constitute an impermissible amendment of the indictment).  /25/ Of
course, in this case there is no question that the allegations
concerning the knowing burglary were not needed in order to render the
indictment sufficient to embrace the offense respondent was proved to
have committed.

   The boundary between separate offenses may sometimes be difficult
to define;  thus, there is no easy formula that can always be applied
to determine whether the prosecution has proved the same offense that
was charged in the indictment.  There may be a need for further
clarification of the applicable standard if future cases present
borderline factual situations.  But in most cases it will not be
difficult to determine whether the offense proved at trial is the same
as that with which the defendant was charged.  Thus, if a defendant
were charged with disturbance of the peace, but the evidence
established instead the occurrence of a criminal trespass, it would be
clear that the prosecution had not proved the offense charged (compare
Garner v. Louisiana, 368 U.S. at 164).  On the other hand, it is quite
clear in this case that the prosecution did prove the offense charged.
 The indictment charged the elements of the mail fraud offense (i.e.,
a scheme to defraud and particular mailings in furtherance of that
scheme), and the government proved those elements at trial.  Both the
indictment and the proof at trial addressed the same general complex
of facts, i.e., events relating to respondent's submission of an
inflated insurance claim based on the alleged burglary of his business
on July 14, 1981.

   Once a court has made the initial determination that deviation
between allegations of an indictment and proof at trial has not
resulted in a defendant's being tried for an offense with which he has
never been charged, it should proceed to a conceptually separate
inquiry -- whether that deviation nevertheless has resulted in
substantial prejudice to the defendant's ability to prepare his
defense.  To the extent this second inquiry differs from the question
whether the indictment and the proof at trial relate to the same
offense, it has only limited relevance to the Fifth Amendment right to
be indicted by a grand jury.  The inquiry into substantial prejudice
is relevant primarily to due process requirements and to a defendant's
Sixth Amendment right to notice of the charges against him.  In
evaluating a defendant's claim of prejudice, it would be appropriate
for a court to examine not only the indictment and the proof at trial,
but any information the defendant may have recieved through a bill of
particulars, discovery, or any other source.

   Respondent clearly did not suffer any substantial prejudice from
narrowing of the scheme charged by the grand jury.  His inflation of
the amount and value of the allegedly stolen copper in connection with
the filing of his insurance claim was a central feature of the
relatively simple scheme charged and by itself accounted for virtually
the entire pecuniary loss suffered by the insurance company, the
victim of his scheme.  Respondent therefore was unquestionably on
notice that he should address that issue at trial.  At the same time,
the government's decision not to offer evidence addressed to the issue
of consent to the burglary could not have prejudiced respondent;
indeed, it presumably aided him by leaving him free to concentrate his
energies on the issue of inflation of the amount and value of copper
on hand at the time of the burglary.  In these circumstances, it is
clear that the government's failure to prove a knowing burglary did
not violate respondent's consitutional rights.  Respondent's mail
fraud convictions therefore should have been affirmed.

   In our view, the standards used to evaluate any deviation between
the charges in the indictment and the proof at trial, whether that
deviation be characterized as an "amendment," a "constructive
amendment," or a "variance," should be the same.  As we noted above,
there is substantial conceptual overlap in these doctrines.  Whatever
the label, the interests at stake are served if a court concludes that
the defendant has been convicted of the offense with which the grand
jury charged him and has not suffered substantial prejudice from any
deviation between the indictment and the proof at trial.  If anything,
the standards should be less demanding in the case of amendments and
constructive amendments, since they give a defendant more timely and
explicit notice of departures from the allegations of the indictment
and since they avoid submission to the jury of theories that
concededly are not supported by sufficient evidence.

   The applicable standards should not be more strict in the case of
physical modification of the indictment.  Physical removal of
surplusage reduces the possibility of prejudice to a defendant if the
indictment is given to the jury and should therefore be encouraged in
such circumstances.  If the court determines that a variation between
the terms of the indictment and the proof at trial is permissible,
there is no reason not to alter the indictment itself in order to
avoid prejudice to the defendant from unnecessary allegations.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   CAROLYN F. CORWIN

      Assistant to the Solicitor General

   VINCENT L. GAMBALE

      Attorney

   NOVEMBER 1984

   /1/ Counsel for the parties agreed at the court of appeals stage to
stipulat to the facts in lieu of ordering a transcript.  The
description of the evidence in the text is taken from the court of
appeals' opinion and from the statement of facts in the government's
brief in the court of appeals.

   /2/ Paragraphs one through seven of count one of the indictment
(which were realleged in count two) read as follows (J.A. 2-3):

         1. Beginning on or about July 2, 1981 and continuing to on or
      about October 26, 1981, in the City and County of San Francisco,
      in the State and Northern District of California,

                          JAMES RUAL MILLER,

      defendant herein, being the president of San Francisco Scrap
      Metal Inc., did devise and intend to devise a scheme and
      artifice to defraud and to obtain money by means of false and
      fraudulent pretenses and representations from Aetna Insurance
      Company by making a fraudulent insurance claim for a loss due to
      an alleged burglary at San Francisco Scrap Metal.

         2. At the time such pretenses and representations were made,
      defendant well knew them to be false.  The scheme, so devised
      and intended to be devised, was implemented in substance as
      follows:

         3. It was a part of the scheme that on or about July 2, 1981,
      defendant would and did increase his insurance policy coverage
      from $50,000 to $150,000 to be in effect for a two week period
      ending July 15, 1981.

         4. It was a further part of the scheme that on or about July
      15, 1981, defendant would and did report that a burglary had
      occurred at San Francisco Scrap Metal during the evening of July
      14, 1981.

         5. It was a further part of the scheme that defendant would
      and did claim to have lost 210,170 pounds of copper wire, worth
      $123,500 and two trucks during the alleged burglary.

         6. It was a further part of the scheme that defendant well
      knew that the alleged burglary was committed with his knowledge
      and consent for the purpose of obtaining the insurance proceeds.

         7. It was a further part of the scheme that defendant well
      knew that the amount of copper claimed to have been taken during
      the alleged burglary was grossly inflated for the purpose of
      fraudulently obtaining $150,000 from Aetna Insurance Company.

   /3/ In support of this conclusion, the Court cited Goto v. Lane,
265 U.S. 393 (1924), and State v. Evans, 40 La. App. 216 (1888).  In
Goto, the Court held that a stipulation by defendants that the
indictment should be understood as using the word "and," rather than
the word "or," in several places did not render defendants'
convictions void.  In Evans, the court held that the prosecutor's
abandonment of the portion of the indictment for murder that charged
the defendant with lying in wait did not constitute an impermissible
amendment of the indictment.

   The Court in Salinger also cited Crain v. United States, 162 U.S.
625, 636 (1896), and Hall v. United States, 168 U.S. 632, 638-639
(1898).  Crain rejected a challenge to a count of an indictment that
charged that the defendant engaged in several distinct acts.  The
Court stated, "(w)e perceive no sound reason why the doing of the
prohibited thing, in each and all of the prohibited modes, may not be
charged in one count, so that there may be a verdict of guilty upon
proof that the accused had done any one of the things constituting a
substantive crime under the statute" (162 U.S. at 636).  Hall rejected
the defendant's claim that the government was required to prove that
he had violated both sections of a statute as was alleged in the
indictment.  The Court noted that "(t)he result of such a holding
would be to say that where an indictment contained all the necessary
averments to constitute an offense created by the statute, if an
averment wholly unnecessary and entirely immaterial be added, the
prosecution must fail unless it prove such unnecessary averment,
although proving every fact constituting the offense provided by the
statute" (168 U.S. at 639).

   /4/ Although the government cited Salinger in its petition for
rehearing in this case (at 4-5, 12), the court of appeals made no
reference to that decision in its order denying rehearing.  In United
States v. Mastelotto, 717 F.2d at 1251 n.13, the court distinguished
Salinger on several grounds, all of which are without merit.  The
Mastelotto court stated first that Salinger stands merely for the
proposition that "'a count cannot be stricken in part as distinguished
from a dismissal of the whole count,'" quoting Dgerton v. United
States, 143 F.2d 697, 699 (9th Cir. 1944).  In fact, the record in
Salinger shows, contrary to the Edgerton court's assumption, that
parts of each count, rather than entire counts, were withdrawn from
the jury in Salinger.  As in this case, the indictment in Salinger
described in the first count of the indictment the scheme and the
means by which it allegedly was carried out;  each subsequent count
referred to a separate mailing and simply referred back to the
description of the scheme in the first count.  See Salinger v. United
States, No. 238 (1926 Term), Tr. of Record at 2-41, 442-453.

   The court in Mastelotto next suggested that Salinger was
distinguishable on the ground that Salinger himself requested at trial
that the unproved plans be withdrawn from the jury (see 272 U.S. at
548).  However, there is no indication that the Court in Salinger
relied on any theory of waiver in concluding that the trial court's
action did not violate the Fifth Amendment.  Indeed, the Salinger
Court's citation to Evans, Crain and Hall makes clear that Salinger's
consent was irrelevant to its holding.

   Finally, the Mastelotto court distinguished Salinger on the ground
that Salinger had not raised, and the Court had not considered, the
possibility that he was prejudiced because the petit jury might have
convicted him for a crime for which the grand jury would not have
indicted him.  That basis for distinction is contradicted by the
record.  In his brief Salinger stated expressly:  "Who may say there
would have been any indictment returned if the evidence before the
grand jury had been addressed to nothing but the single element which
the (district court) retained." Salinger v. United States, No. 238
(1926 Term), Brief and Agrument for Plaintiff in Error at 8.  Thus,
the Court in Salinger considered precisely the same sort of claim of
prejudice presented in this case and in Mastelotto.

   /5/ Most courts of appeals have agreed that a conviction on a count
charging several illegal acts, or several objectives of a conspiracy,
should not be reversed on the ground that there is insufficient
evidence with respect to some of the acts or objectives charged;
rather the verdict must be upheld so long as there is sufficient
evidence to support one or more of the other acts or objectives
charged.  See, e.g., United States v. Johnson, 713 F.2d 633, 645-646 &
n.15 (11th Cir. 1983), cert. denied, No. 83-5843 (Mar. 5, 1984);
United States v. Moward, 641 F.2d 1067, 1073-1074 (2d Cir.), cert.
denied, 454 U.S. 817 (1981;  United States v. Halbert, 640 F.2d 1000,
1008 (9th Cir. 1981);  United States v. Murray, 621 F.2d 1163, 1171 &
n.10 (1st Cir.), cert. denied, 449 U.S. 837 (1980);  United States v.
Wedelstedt, 589 F.2d 339, 341-342 (8th Cir. 1978), cert. denied, 442
U.S. 916 (1979);  United States v. Mackey, 571 F.2d 376, 387 n.14 (7th
Cir. 1978);  United States v. Lee, 422 F.2d 1049, 1052 (5th Cir.
1970).  Contra, United States v. Tarnopol, 561 F.2d 466, 475 (3d Cir.
1977).  These decisions reflect the implicit recognition that the
Fifth Amendment right to indictment by a grand jury is not violated
when the prosecution fails to prove all the acts, means, or objectives
alleged in the indictment.

   /6/ See also, e.g., Crain v. United States, 162 U.S. at 634-636;
United States v. Abascal, 564 F.2d 821, 832 (9th Cir. 1977), cert.
denied, 435 U.S. 942, 953 (1978);  United States v. Cioffi, 487 F.2d
492, 499 (2d Cir. 1973), cert. denied, 416 U.S. 995 (1974);  2 E.
Devitt & C. Blackmar, Federal Jury Practice and Instructions Section
54.18 (3d ed. 1977).

   /7/ See, e.g., New England Enterprises, Inc. v. United States, 400
F.2d 58, 62-65 (1st Cir. 1968), cert. denied, 393 U.S. 1036 (1969);
United States v. Heimann, 705 F.2d 662, 669 (2d Cir. 1983);  United
States v. Milestone, 626 F.2d 264 (3d Cir.), cert. denied, 449 U.S.
920 (1980);  United States v. Coward, 669 F.2d 180, 183-184 (4th
Cir.), cert. denied, 456 U.S. 946 (1982);  United States v. Salinas,
654 F.2d 319, 325 (5th Cir. 1981);  Gambill v. United States, 276 F.2d
180, 181 (6th Cir. 1960);  United States v. Spector, 326 F.2d 345,
347-348 (7th Cir. 1963);  Mellor v. United States, 160 F.2d 757 (8th
Cir.), cert. denied, 331 U.S. 848 (1947);  United States v. Dawson,
516 F.2d 796, 801-802 & n.4 (9th Cir.), cert. denied, 423 U.S. 855
(1975);  United States v. Whitman, 665 F.2d 313, 316-318 (10th Cir.
1981);  United States v. Diaz, 690 F.2d 1352, 1356 (11th Cir. 1982);
United States v. Conlong, 661 F.2d 235, 238-239 (D.C. Cir. 1981),
cert. denied, 454 U.S. 1149 (1982).

   /8/ See, e.g., United States v. Gatewood, 733 F.2d 1390, 1394 (10th
Cir. 1984) ("every element of a (mail fraud) scheme need not be
proved");  United States v. Lemire, 720 F.2d 1327, 1345 (D.C. Cir.
1983), cert. denied, No. 83-1413 (June 4, 1984) (proof of one object
of the two-pronged wire fraud scheme alleged was sufficient);  United
States v. Solomon, 686 F.2d 863, 875 (11 Cir. 1982) ("When the
indictment alleges a criminal conspiracy to violate several
(statutes), it is sufficient to prove that the defendant conspired to
accomplish only one of these offenses.");  United States v. Toney, 598
F.2d 1349, 1355-1356 (5th Cir. 1979), cert. denied, 444 U.S. 1033
(1980) ("In mail fraud cases the government need * * * only prove a
sufficient number of fraudulent activities to support a jury inference
that there was a fraudulent scheme.");  United States v. AMREP Corp.,
560 F.2d 539, 546 (2d Cir. 1977), cert. denied, 434 U.S. 1015 (1978)
("A scheme to defraud may consist of numerous elements, no particular
one of which need be proved if there is sufficient overall proof that
the scheme exists.");  United States v. West, 549 F.2d 545, 552 (8th
Cir.), cert. denied, 430 U.S. 956 (1977) (it is "settled doctrine"
that the government need not prove all the elements of an alleged
fraudulent scheme);  United States v. Joyce, 499 F.2d 9, 22 (7th
Cir.), ciert. denied, 419 U.S. 1031 (1974) ("it is well established
that every allegation of an indictment chargine a scheme need not be
proved in order to convict").  See also, e.g., Seventh Circuit
Judicial Conference, Manual on Jury Instructions in Federal Criminal
Cases Section 16.02, reprinted in 36 F.R.D. 601 (1965) ("Nor is it
necessary that the Government prove all of the pretenses,
representations and acts charged in the (mail fraud) indictment.  It
is essential only that one or more of them be proved to show the
existence of the scheme.").

   /9/ Schemes to defraud are frequently "multi-faceted." United
States v. Zeidman, 540 F.2d 314, 318 (7th Cir. 1976).  See, e.g.,
United States v. Robinson, 716 F.2d 1095, 1096 (6th Cir. 1983),
petition for cert pending. No. 83-613 (filed Oct. 12, 1983), and cert.
denied, No. 83-5612 (Jan. 9, 1984) (insurance fraud based on inflated
claims and defendants' complicity in suspicious fires that destroyed
the insured property);  United States v. Mandel, 591 F.2d 1347 (4th
Cir. 1979), cert. denied, 445 U.S. 961 (1980) (mail fraud scheme
involving bribery, false representations, and concealment).  Indeed,
the fraudulent scheme alleged in this case was relatively simple
compared to most.

   A common type of fradulent scheme involves the marketing of a
product or service through boiler room sales techniques.  Such schemes
may involve multiple victims and a variety of misrepresentations about
the resources and track record of the company, the nature of the
product or service, the qualifications of the sales force, the nature
of the contract, and the risk to the consumer.  See, e.g., United
States v. Ranney, 719 F.2d 1183, 1185 (1st Cir. 1983);  United States
v. Beecroft, 608 F.2d 753, 755-756 (9th Cir. 1979);  United States v.
Toney, 598 F.2d at 1356.

   /10/ See also, e.g., United States v. Dionisio, 410 U.S. 1, 13,
15-16 (1973);  United States v. Reed, 726 F.2d 570, 578-579 (9th Cir.
1984) ("The grand jury could properly inquire about (the putative
defendant's) criminal record and was not bound by procedural or
evidentiary rules.").  Accord, United States v. Wilson, 732 F.2d 404,
409-410 (5th Cir. 1984) (grand jury "may consider any evidence bearing
upon the defendant's guilt, regardless of whether that evidence would
be excluded at trail");  United States v. Levine, 700 F.2d 1176,
1178-1179 (8th Cir. 1983) (grand jury could consider putative
defendant's prior convictions, his refusal to speak to law enforcement
officers, and erroneous statements by witnesses);  United States v.
Echols, 542 F.2d 948, 951-952 (5th Cir. 1976), cert. denied, 431 U.S.
904 (1977);  United States v. Doe, 541 F.2d 490, 493 (5th Cir. 1976);
United States v. Camporeale, 515 F.2d 184, 189 (2d Cir. 1975).

   /11/ There might conceivably be rare cases in which the broad
scheme charged in the indictment and the narrower scheme proved at
trial would differ so greatly in emphasis that a defendant could claim
that his ability to prepare a defense was somehow impaired.  In cases
in which a defendant raises and supports such a claim, it normally
should be a sufficient remedy to grant a continuance to allow the
defendant to investigate further the areas on which the government
eventually focused its proof.  In most cases, however, it seems fair
to expect that a defendant is on notice that he must be prepared to
address any portion of the indictment that might form the basis for a
conviction.

   /12/ There is evidence that the court of appeals itself found the
description in the indictment and the proof at trial to be "different"
only in the sense that the latter was narrower than the former.  In
the opinion it originally issued, the panel described respondent's
conviction as predicated on a "substantially narrower scheme than that
pleaded in the indictment" (J.S. 8;  715 F.2d at 1363).  After the
government filed a petition for rehearing calling attention to the
court's failure to consider cases that appeared to permit narrowing of
charges, the panel modified its opinion to substitute the phrase
"substantially different scheme from that pleaded in the indictment"
(Pet. App. 8a).  See id. at 10a.

   In reprinting the court of appeals' opinion in the appendix to the
petition, we erroneously reproduced the modified version of the
penultimate paragraph of the opinion, rather than the original version
issued on September 13, 1983.  Compare Pet. App. 8a with id. at 10a.
We have reprinted the original version of the penultimate paragraph of
the opinion in the joint appendix (see U.A. 8).  That original version
also appears at 715 F.2d at 1363.

   /13/ Indeed, the trial court in Salinger withdrew from the jury for
lack of evidence 11 of the 12 means by which it was charged that
Salinger had conducted a fraudulent scheme.  Salinger v. United
States, No. 238 (1926 Term), Tr. of Record at 442-453;  Brief and
Argument for Plaintiff in Error at 2.  Here the government's proof was
inadequate with respect to only one of the two means alleged.

   /14/ If, contrary to our submission, the court of appeals were
correct in concluding that the government's proof of a scheme narrower
than that alleged in the indictment constituted reversible error, we
assume it would be open to the government to obtain a new indictment
based on the narrower scheme and to try respondent under the more
limited indictment.  Compare, e.g., United States v. Cambindo
Valencia, 609 F.2d 603, 606, 628 (2d Cir. 1979), cert. denied, 446
U.S. 940 (1980) (remanding for retrial or new indictments when
evidence showed multiple conspiracies, rather than the single
conspiracy alleged in the indictment);  United States v. Bertolotti,
529 F.2d 149, 158-159 (2d Cir. 1975) (same);  United States v.
Varelli, 407 F.2d 735, 747-748 (7th Cir. 1969) (same).  But cf. United
States v. Camiel, 689 F.2d 31, 40 (3d Cir. 1982);  United States v.
Eaton, 501 F.2d 77, 80 (5th Cir. 1974);  Gov't of the Virgin Islands
v. Aquino, 378 F.2d 540, 554 (3d Cir. 1967).  It would be clearly
inappropriate to allow a defendant to escape prosecution entirely
because of the government's failure to achieve a perfect match between
the allegations of the indictment and proof presented at trial, when
the proof at trial established beyond a reasonable doubt that the
defendant committed the offense with which he was charged.

   The "error" in such a case would be more properly described as a
defect in the indictment than as a failure of proof;  in this case,
for example, no error could have been identified if the indictment had
been drafted so that it alleged an inflated claim, but not a knowing
burglary.  Double jeopardy principles therefore would not bar a
retrial on a new indictment.  See, e.g., Lee v. United States, 432
U.S. 23 (1977).  By no stretch of the imagination could the court of
appeals' reasoning in this case be described as amounting to an
acquittal within the meaning of United States v. Scott, 437 U.S. 82,
96-98 (1978).  Of course, to the extent the court's conclusion that
the government proved a "substantially different" scheme from that
alleged in the indictment (Pet. App. 8a, 10a) indicates that it viewed
the evidence as proving an offense different from that charged, there
clearly would be no double jeopardy concern.  The Dourble Jeopardy
Clause bars retrial only "for the same offense."

   /15/ In our view, the fact that there has been an actual physical
alteration of the indictment is not a sensible basis for
distinguishing Bain.  As we explain below (pages 39-40, 46-47), we
believe the standard for whether the proof at trial has deviated
impermissibly from the allegations of the indictment should not differ
depending on whether there has been a physical modification of the
indictment.

   /16/ We also question this ground for distinguishing Bain.  It is
unclear why the indictment in Bain would have been subject to
dismissal.  The Third Circuit in Milestone suggested that the
reference to the Comptroller of the Currency might have rendered the
indictment defective because the statute referred only to intent to
deceive the examining agents, not the Comptroller.  See 626 F.2d at
267.  However, the words relating to the Comptroller in the Bain
indictment presumably could have been treated as surplusage and
ignored, since the indictment also charged intent to deceive an
examining agent and therefore stated an offense.  That is how this
precise problem was handled in Ford.  See 273 U.S. at 602.

   /17/ We note, however, that proof of a kind of interstate commerce
different from that alleged in the indictment in Stirone did not mean
that the defendant was convicted of a different offense from that
charged in the indictment.  Surely, for instance, he could not have
been separately tried and twice punished for a single extortionate act
that affected two different aspects of interstate commerce.  Thus,
while the result in Stirone might conceivably have been justified on
the basis of prejudice resulting from unfair surprise to the
defendant, we believe, for the reasons set forth in Part C of this
brief, that the analysis set forth in Stirone is unsound.

   /18/ The Court in Bain challenged the trial court's conclusion that
the words stricken from the indictment were surplusage and could not
have affected the grand jury's decision to indict:  "But it is not for
the court to say whether they would (indict) or not. * * * How can the
court say that there may not have been more than one of the jurors who
found this indictment, who was satisfied that the false report was
made to deceive the Comptroller, but was not convinced that it was
made to deceive anybody else?  And how can it be said that, with these
words stricken out, it is the indictment which was found by the grand
jury?" 121 U.S. at 9-10.

   If this principle were sound, we do not see how a court could
affirm a conviction on a lesser included offense where the evidence on
the greater offense is defective, or even affirm convictions whenever
the petit jury fails to convict on all counts of the indictment.  A
defendant could always suggest that the grand jury might have declined
to indict if it had considered only evidence relating to the lesser
included offense or only evidence relating to some of the counts.

   /19/ An indictment also helps to ensure that a defendant will not
be placed in jeopardy twice for the same offense.  Russell v. United
States, 369 U.S. at 765.  However, this purpose does not appear to be
significantly implicated by deviations between charges and the proof
at trial, since courts normally refer to the entire record of a
proceeding in determining whether a defendant is being placed twice in
jeopardy for the same offense.  See ibid;  Bartell v. United States,
227 U.S. 427, 433 (1913);  Dunbar v. United States, 156 U.S. 185, 191
(1895).  Of course, there is clearly no threat that a defendant will
be placed in double jeopardy in cases like this one, in which the
proof at trial falls entirely within the scope of what is alleged in
the indictment.

   /20/ Since the only possible injury to a defendant identified under
the analysis of Bain and the court below in this case involves the
possibility that the grand jury might in its discretion have elected
not to indict had it been presented only with the narrower scheme
proved at trial, it would seem to follow that the injury could be
fully rectified simply by requiring the prosecution to secure a new
indictment.  If it is able to do so, it is hard to see what purpose is
served by setting aside the otherwise valid conviction obtained in a
fair and error-free trial.

   /21/ We can scarcely believe that the court of appeals, had it
focused more specifically upon the offense respondent was proved to
have committed in this case, could have found it in fact plausible to
suppose that the grand jury would have refused to indict for a
fraudulent scheme limited to the submission of a false and grossly
inflated claim of loss to the insurance company.

   /22/ The opinion did not discuss or even mention Salinger.

   /23/ See page 28 not 16, supra.

   /24/ We acknowledge that this latter conclusion would seem to be at
odds with Stirone, but we nevertheless believe it to be well supported
by logic, policy, and much other of this Court's precedent.

   /25/ In Stirone the Court indicated (361 U.S. at 218) that the
government would be required to prove the specified effect on
interestate commerce where one is alleged in the indictment, "even
though it be assumed that under an indictment drawn in general terms a
conviction might rest upon a showing that commerce of one kind or
another had been burdened." But as we noted above (page 30 note 17),
the government's proof of an effect on commerce different from that
alleged in the indictment did not mean that Stirone was convicted of
an offense different from that with which he was charged;  indeed, it
is clear that he was convicted of the specific extortionate act
identified in the indictment.  At most, Stirone presented a problem of
notice to the defendant.