The following excerpt is from United States v. Lopez, 19-10017 (9th Cir. 2021):
This case does not involve an insignificant or harmless "variance." United States v. Bolzer, 556 F.2d 948 (9th Cir. 1977), is an instructive variance case. There, the defendants, who were charged with armed mail robbery and conspiracy, argued that the conspiracy count should have been dismissed because of a fatal variance. Id. at 949. The evidence demonstrated that the defendants had been surveilling a different postal facility than the one described in the indictment. Id. at 950. Because the surveillance was "only one of four overt acts alleged to have been committed by the defendants in furtherance of the conspiracy," and because the government presented sufficient evidence of the other overt acts, we held that the variance was harmless. Id. at 950-51. Unlike here, the charging terms in the Bolzer indictment remained unaltered.
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