his prejudice, as he "was entitled to and did rely on that theory and defend against it at trial."
Kelly's is essentially a "variance" argument, see Dunn v. United States, 442 U.S. 100, 105-07, 60 L. Ed. 2d 743, 99 S. Ct. 2190 (1979), although it is not framed as such in his memorandum. As stated in Dunn, "[a] variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment." Id. at 105. Here, Kelly argues in substance that the facts proved at trial, and on the basis of which he was convicted, do not coincide with those which the government warned Kelly in the Indictment that they would attempt to prove. Thus, a variance. Implicitly, Kelly also challenges the Court's jury instructions, which gave the jury leave to convict him on an "or otherwise" theory.
A variance, however -- even if one occurred in this case -- would not be per se error. Rather, a defendant must show, inter alia, that the "variance caused substantial prejudice." United States v. Tarantino, 269 U.S. App. D.C. 398, 846 F.2d 1384, 1391 (D.C. Cir. 1988) (emphasis added). In this case, the Court concludes that the Government's alleged alteration of its theory -- effected by its proof only that Kelly abducted Fultz, not for ransom, but "for otherwise" -- caused Kelly no substantial prejudice.
This is not an instance in which the change in the government's theory subjected the defendant to liability for a different common law offense, and thereby wholly misled the defendant as to the proper manner of formulating his defense, as was the case in United States v. Smolar, 557 F.2d 13, 18-19 (1st Cir. 1977) (theory changed from fraud to breach of fiduciary duty in violation of 15 U.S.C. § 78j and Rule 10b-5). Instead, this is a situation in which the defendant was well aware of the facts upon which the government's case rested, and had been apprised by Counts One and Three that these facts, in the government's view, would support a conviction under the "or otherwise" language. See United States v. Weiss, 752 F.2d 777, 790 (2d Cir. 1985) (court rejected variance argument on grounds, inter alia, that "the record clearly establishes that appellant had adequate notice of the nature of the charges against him"); United States v. Lemire, 232 U.S. App. D.C. 100, 720 F.2d 1327, 1346 (D.C. Cir. 1983) (in rejecting variance argument, court stated that "the astute defense counsel knew, or should have known, from the indictment what the government's ultimate legal position was."). Moreover, there can be no question that the acts proven at trial do support a conviction under the "or otherwise" language -- Kelly was convicted for acts that constitute "kidnaping" under § 1201(a). See Lemire, 720 F.2d at 1346 ("defendants' most persuasive challenge . . . must be the possibility that they were convicted under a wrong theory of law, not the technical defense that they suffered from surprise due to variance"); Boyd v. LeFevre, 519 F. Supp. 629, 633 (E.D.N.Y. 1981) ("Nor is there any question that the set of facts and theory of the case as presented to the jury allowed conviction for conduct that constituted the crimes of sale and possession under New York law."). Thus, in the Court's view, the variance -- assuming arguendo that one occurred -- simply did not work to Kelly's substantial prejudice.
For the foregoing reasons, Kelly's motion for judgment of acquittal shall be, and hereby is, DENIED.
Date: May 11, 1989