Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1989)

MEMORANDUM^** 

James Dean Youngman appeals from the judgment entered pursuant to a jury's finding that he was guilty of carnal knowledge of a child under sixteen years of age in violation of 18 U.S.C. §§ 1153 and 2032. Youngman contends that the judgment must be reversed because the government's proof at trial varied from the facts alleged in the indictment. We affirm because Youngman has failed to demonstrate that he was prejudiced by the alleged variance.

* The indictment alleges " [t]hat on several occasions during the month of November, 1985," Youngman "did carnally know a minor female ... of the age of 10...." At trial, the government offered evidence of two acts of carnal knowledge during November of 1985.

Youngman argues that the evidence offered by the government did not establish "several" acts of carnal knowledge. Thus, Youngman argues "the government proved less than they alleged."

Youngman asserts that "Webster's New World Dictionary, Second College Edition, defines 'several' as more than two but not many." The government argues no variance occurred because "The Unabridged Dictionary, Webster's New International Dictionary, Second Edition, also defines 'several' as ... 'More than one--so construed in legal use.' " We need not here decide which dictionary correctly defines "several" or whether a variance occurred in this matter because Youngman has failed to show that he was prejudiced.

"A variance between indictment and proof does not require reversal unless it affects the substantial rights of the parties." United States v. Kaiser, 660 F.2d 724, 730 (9th Cir. 1981), cert. denied, 455 U.S. 956 (1982) (citations omitted). A variance "may affect the substantial rights of a defendant in a criminal case if the effect is to prevent the defendant from presenting his defense properly, or if it takes him unfairly by surprise, or if it exposes him to double jeopardy." United States v. Anderson, 532 F.2d 1218, 1227 (9th Cir.), cert. denied, 429 U.S. 839 (1976).

Youngman has not persuaded us that the presentation of his defense was harmed by proof that he committed fewer criminal acts than those alleged in the indictment. Accepting Youngman's definition of the word "several," the indictment gave him notice that he had to prepare a defense against evidence of more than two acts of carnal knowledge with one person during a one month period. If anything, proof that only two acts occurred made the defense less burdensome--not more so. Youngman does not claim that he was unfairly surprised or that the alleged variance exposed him to double jeopardy.

Youngman argues that prejudice is shown "where there is a danger that the acts of one defendant would be transferred by the jury to the other defendant." He relies on United States v. Warren, 772 F.2d 827 (11th Cir. 1985), cert. denied, 475 U.S. 1022 (1986) for this proposition. Youngman failed to cite the page, or passage in Warren that supports his argument. Warren does contain the following language in a footnote discussion: "A defendant's 'substantial rights' may be affected where there are so many defendants and evidence of so many separate conspiracies that there is a substantial chance that the jurors would transfer evidence of one conspiracy to an unrelated defendant." Id. at 835 n. 12.

Youngman appears to argue that the use of the term "several" in the indictment may have caused the jury to convict him for similar acts committed against the victim by his brother. We are not persuaded by such speculation. Unlike the problem discussed in the quoted passage from Warren, the factual questions in this matter were quite simple and Youngman was tried alone. Youngman has failed to demonstrate that the jury confused his acts against the child with those committed by his brother.

AFFIRMED.