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UNITED STATES v. GIANARIS

October 14, 1977

UNITED STATES of America
v.
Peter J. GIANARIS, Nicholas J. Gianaris



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, District Judge.

 The United States of America and defendants Peter J. Gianaris and Nicholas J. Gianaris submitted this case to the Court for trial on a stipulated record of Count II of the indictment returned by the Grand Jury on December 21, 1976. The stipulated record, signed by both defendants, their counsel, and counsel for the Government, was submitted to the Court on September 29, 1977, and the Court took the matter under advisement at that time.

 Count II of the indictment, the only charge now before the Court, alleges:

 
From on or about the first day of September 1974, the exact day being to the Grand Jury unknown, and continuously thereafter up to and including the 11th day of March 1975, in the District of Columbia and elsewhere, PETER J. GIANARIS, NICHOLAS J. GIANARIS [and seven other named individuals], defendants herein, and others known and unknown to the Grand Jury did conduct, finance, manage, supervise, direct and own all and part of an illegal gambling business, to wit, a sports bookmaking business in violation of Section 1508, Title 22, District of Columbia Code; said gambling operation being in substantially continuous operation for a period in excess of thirty (30) days, and having a gross revenue of two thousand dollars ($2,000) or more on one or more single days, involving five or more persons in its conduct, financing, management, supervision, direction and ownership.
 
(In violation of Title 18, United States Code, Section 1955 and 2.)

 Upon consideration of the stipulated record presented to the Court, and after comparing the evidence contained therein with Count II of the indictment, the Court noted that the dates of the alleged offense in Count II -- September 1, 1974 to March 11, 1975 -- appeared to be at variance with both the proof tendered by the Government in the stipulated record and with the dates contained in all five other counts in the December 21, 1976 indictment, as well as the dates contained in the supplemental indictment against defendants Peter J. Gianaris and Nicholas J. Gianaris on April 19, 1977. *fn1" On October 4, 1977, at the commencement of the scheduled hearing on that date, the Court notified the parties and their counsel of the apparent variance in dates. Until that time both the parties and their counsel were unaware of the apparent variance. Counsel for the government then advised the Court that the closing date alleged in Count II -- March 11, 1975 -- was indeed at variance with the proof tendered herein and the dates in the other counts of the indictments. *fn2" He further advised the Court that the closing date in Count II should have read, and was intended to read, March 11, 1976, and that the last digit of the year in the actual indictment was merely a typographical error.

 Counsel for defendants Peter J. Gianaris and Nicholas J. Gianaris orally moved for the dismissal of Count II because of the error in the indictment. The Court will treat this motion as a motion for acquittal pursuant to Fed.R.Crim.P. 29, for the legal effect of both forms of motion is identical under the rather unusual circumstances of this case. The basis for defendants' motion is that the error in the indictment resulted in a fatal variance between the charge in Count II and the Government's proof.

 This case is now, therefore, before the Court for a determination of how the error in the closing date alleged in Count II of the indictment affects this Court's consideration of the evidence tendered in the stipulated record with regard to Count II of the indictment. For the reasons stated herein, the Court concludes that the admittedly erroneous closing date set forth in Count II has not and will not prejudice the defendants, and the Court therefore will disregard the error pursuant to Fed.R.Crim.P. 52(a). The error is thus not a fatal variance and does not bar the Court from considering all the evidence in the stipulated record herein. Upon consideration of the entire stipulated record, the Court concludes that the Government's uncontroverted evidence proves beyond a reasonable doubt that the defendants, Peter J. Gianaris and Nicholas J. Gianaris, violated 18 U.S.C. § 1955, and each of the elements thereof, between the dates of September 1, 1974, and March 11, 1976, and the Court therefore will deny the defendants' motion for acquittal and will find the defendants guilty as charged with respect to Count II.

 
I. Since Both Defendants Have At All Times Been Fully Apprised And Had Knowledge Of The Nature As Well As The Scope Of The Charge Against Them, And Since Neither Defendant Was In Any Way Prejudiced In His Preparation Of A Defense As A Result Of The Digital Error In The Indictment, The Court Will, Pursuant To Fed.R.Crim.P. 52(a), Disregard The Error And Consider All The Evidence Of Record Against The Defendants.

 It is settled beyond peradventure that not all variances between the charging terms of an indictment and the proof offered at trial are "fatal"; in other words, not every variance requires dismissal of the indictment or a verdict of acquittal. See United States v. Eaton, 501 F.2d 77, 79-80 (5th Cir. 1974). As the Supreme Court held in Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 630, 79 L. Ed. 1314 (1935):

 Relying on this precedent, the Court of Appeals for this Circuit has stated that the "accepted rule is that a variance does not call for dismissal of the indictment except upon a showing of prejudice." Gaither v. United States, 134 U.S.App.D.C. 154, 165, 413 F.2d 1061, 1072 (1969) (emphasis added). *fn3"

 There can be no doubt that neither of the defendants has suffered any prejudice whatsoever by the digital error in Count II of the indictment. The courts that have confronted cases similar to the instant one have focused on two interrelated considerations in determining whether an error in the indictment prejudiced the defendant and thereby warranted dismissal of the indictment. These considerations are: (1) whether the defendant was apprised and had knowledge of the nature of the charge against him; and (2) whether the defendant was prejudiced in the preparation of his defense by the error in the indictment. Consideration of both of ...


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