UNITED STATES OF AMERICA, PETITIONER V. JAMES RUAL MILLER No. 83-1750 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinion below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix OPINION BELOW The opinion of the court of appeals (App., infra, 1a-8a) is reported at 715 F.2d 1360. JURISDICTION The judgment of the court of appeals was entered on September 13, 1983. A petition for rehearing was denied on March 21, 1984 (App., infra, 9a-10a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Fifth Amendment right to be tried 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 somewhat 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. Respondent was the owner of San Francisco Scrap Metals, Inc., a company that regularly purchased scrap wire and stripped, baled and resold it. 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. Several weeks earlier respondent had increased the insurance coverage for his business from $50,000 to $150,000 for the two-week period ending July 15, 1981. Following the burglary, respondent mailed to Aetna Insurance Company a proof of loss that represented, inter alia, that he had lost 201,000 pounds of copper 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. App., infra, 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 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. 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 respondent claimed to have purchased from them. App., infra, 3a. Several of respondent's employees who were working on the day of the burglary testified that there was "no way" respondent had anything close to 201,000 pounds of copper on hand. 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. /1/ At trial, the government presented the evidence that respondent had grossly inflated the amount of copper taken. However, it did not produce any evidence 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. 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" and thus a "fatal variance" (Reporter's Partial Tr. 4). The court reserved a ruling on the motion. The court instructed the jury that the government was required only to prove 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. The court subsequently denied the motion for a judgment of acquittal. 3. The court of appeals vacated the convictions (App., infra, 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 respondent for a scheme to defraud Aetna by inflating the amount of the claimed loss, while the grand jury 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" (App., infra, 7a). The court characterized respondent's convictions as "predicated on a substantially different scheme from that pleaded in the indictment" (id. at 8a). REASONS FOR GRANTING THE PETITION The court of appeals' holding that respondent's convictions must be vacated because the government failed to prove at trial every feature of the fraudulent scheme alleged in the indictment represents a radical departure from longstanding and well-established legal principles. Until the decisions in this case and in United States v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983), courts uniformly permitted departure from the terms of an indictment at trial when the effect was to narrow the charges against the defendant. Under this case and Mastelotto, however, proof that is narrower than the original charges will be adjudged insufficient -- despite the fact that the petit jury concludes that that proof establishes that the defendant violated the statute referred to in the indictment in a manner charged by the indictment -- if the court considers it possible that the grand jury might have chosen not to indict on the basis of the more limited proof. The standard articulated by the court of appeals bears no relation to the purposes served by the constitutional right to indictment by a grand jury; indeed, the court appears to have confused the distinct functions of the grand jury and the petit jury. The principle applied in this case is an exceedingly expansive one and has serious potential for impairing the government's ability to prosecute both fraud and other types of cases. Indeed, we believe that, in terms of its practical application, the decision below is potentially one of the most troublesome we have presented for review by this Court in a criminal case in recent years. A district court has already invoked Mastelotto and the decision below as the basis for dismissal of a major fraud prosecution in the Northern District of California. We believe application of the principle stated in this case is virtually certain to result in dismissal of other important prosecutions in the Ninth Circuit. Review by this Court is therefore warranted. 1. There is no question that at trial respondent was shown to have violated the mail fraud statute. Neither the court of appeals nor respondent has taken issue with the jury's conclusion that the government proved those violations beyond a reasonable doubt. Nor is there any dispute that respondent engaged in a fraudulent scheme involving submission of an inflated insurance claim for the value of allegedly stolen copper and that he used the mails in furtherance of that scheme. Finally, there is no question that everything that was proved at trial was encompassed within the allegations contained in the indictment. The court of appeals nevertheless held that respondent's convictions could not stand because the scheme the government proved at trial lacked one feature -- advance knowledge of, and consent to, the burglary -- of the scheme described in the indictment. 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 Mastelotto (App., infra, 7a). The court cited 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" (App., infra, 6a). The court also relied (ibid.) on the statement in Mastelotto that a defendant's Fifth Amendment right to be tried for a crime for which he has 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" (717 F.2d at 1248-1249 (emphasis added)). In apparent reliance on the Mastelotto court's reference to "concentric" schemes, the court in this case held that the government may not prove a scheme that falls entirely within the bounds of the description in the indictment, but is in one respect narrower than the scheme charged. In so holding, the court of appeals departed from a uniform line of authority based on the decisions of this Court and of every court of appeals. Until now, it has been clear that the allegations in an indictment need not match the evidence at trial when the effect of the disparity is only to narrow the charges against a defendant. Under this "ameliorating doctrine," "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 that the remaining allegations charge an offense." 1 C. Wright, Federal Practice & Procedure Section 127, at 422 (2d ed. 1982). This Court in Salinger v. United States, 272 U.S. 542 (1926), applied this well-established principle. In Salinger, a mail fraud case, the indictment charged a scheme to defraud that "comprehended several relatively distinct plans for fleecing intended victims" (id. 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. The Supreme Court rejected the defendant's challenge to the withdrawal of a portion of the charge, holding that "it 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 (citations omitted). /2/ The Court has also held that unnecessary allegations that are included in the indictment may be ignored and that this does not constitute an impermissible amendment of the indictment. See Ford v. United States, 273 U.S. 593, 602 (1927) (useless averment that a conspiracy violated provisions of a treaty). See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250 (1940) (where an indictment charges various means by which a conspiracy is effectuated, not all of them need be proved). 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. See, e.g., New England Enterprises, Inc. v. United States, 400 F.2d 58, 64-65 (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. Conlon, 661 F.2d 235, 238-239 (D.C. Cir. 1981), cert. denied, 454 U.S. 1149 (1982). At most, courts have analyzed the effective narrowing of charges to fit the proof at trial as a variance. Even when the proof shows more than what is alleged in the indictment, a variance by itself is not fatal to a judgment of conviction. "The true inquiry * * * is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82 (1935) (quoting former 28 U.S.C. 391). See also Kotteakos v. United States, 328 U.S. 750, 764-765 (1946); Fed. R. Crim. P. 52(a). Here the court did not even suggest that it would be appropriate to consider whether respondent had suffered any prejudice from the fact that the government proved somewhat less than what was charged in the indictment. Instead, it simply concluded that in view of the government's failure to prove respondent's consent to the burglary, the conviction could not stand. The court of appeals' holding also runs counter to well established pleading practices. Indictments normally are drafted broadly in order to encompass all of the proof the government hopes to present at the time of trial. In many cases, for a variety of reasons, less than all of the anticipated evidence is eventually introduced at trial. A witness may change his story at or prior to trial or decide at the last minute not to cooperate with the government. Witnesses may die between indictment and trial, or the prosecutor may conclude that a grand jury witness would not be effective at trial. The prosecutor may conclude that the available proof is not sufficiently convincing to establish some aspect of the charged scheme or that the attempt to prove it would be unduly time-consuming, confusing, or distracting from the proof of the main core of the offense. And it is always possible that the trial court will exclude evidence that was presented to the grand jury. In addition, 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 doubtful whether it will be possible to prove all three objects under the higher standard of proof at trial. /3/ In the past, it has been clear that the government could obtain a conviction even if it proved only one of the objects alleged, one of the means alleged, one of the overt acts alleged, and so on. Indeed, this Court has stated, "(t)he general rule is that when a jury returns a guilty verdict 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." Turner v. United States, 396 U.S. 398, 420 (1970). /4/ The trial court in this case instructed the jury on the basis of this principle. The decision of the Ninth Circuit, however, implicitly rejects the general rule in holding that the government may not rely on proof of one feature of a scheme (inflation of the value of copper taken) when the indictment charges a scheme with two features (inflation of the value of the copper and consent to the burglary). The court of appeals in this case and in Mastelotto based its analysis largely on Ex parte Bain, 121 U.S. 1 (1887), and on passages from Stirone v. United States, 361 U.S. 212 (1960), that rely heavily on Bain. But Bain and Stirone do not support the broad principle embraced by the court of appeals. Bain involved an actual physical amendment to the indictment. This Court recently noted that Bain "was long ago limited to its facts by Salinger v. United States, 272 U.S. 542 (1926)." United States v. Villamonte-Marquez, No. 81-1350 (June 17, 1983), slip op. 2 n.2. See also id., slip op. 5 n.5 (Brennan, J., dissenting) (describing the holding in Salinger that the trial court may omit a charge not supported by the evidence at trail as stating an "unsurprising rule"). As for Stirone, it is clearly distinguishable from this case. There the trial court instructed the jury that it could find interference with either interstate movement of steel or interstate movement of sand (both of which the government had attempted to prove at trial), although the indictment charged only interference with interstate movement of sand. Thus, under the instructions given, the jury could have found facts that were entirely outside the scope of what was charged in the indictment. In contrast, all of the proof in this case came within the scope of what was charged. The decision below reflects the confusion -- originating largely with Ex parte Bain -- that has long existed in the federal courts concerning the extent to which proof at trial may deviate from what is charged in the indictment. The courts of appeals have noted the persistence of this confusion. See, e.g., United States v. Cina, 699 F.2d 853, 857-858 (7th Cir. 1983), cert. denied, No. 83-28 (Nov. 28, 1983); 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"). This Court on several occasions has sought to limit Bain to its facts (see page 12, supra). Nevertheless, as this case demonstrates, some courts continue to regard Bain as good authority for broad propositions that this Court has rejected elsewhere. To the extent the confusion persists, we suggest that this case presents an opportunity for the Court to clarify the status of Bain and of the related language from Justice Black's opinion in Stirone, on which the court below relied. /5/ 2. The holding in this case rests on a significant misperception of the role of the grand jury and the purposes served by the Fifth Amendment right to be tried on an indictment. In our system of criminal justice the grand jury and the petit jury 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 makes the actual determination of guilt beyond a reasonable doubt. The requirement of indictment by a grand jury, based on a standard of probable cause, serves as a protection against oppressive and unwarranted criminal prosecutions. Costello v. United States, 350 U.S. 359, 362 (1956). In addition, the indictment 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). /6/ Here there is no doubt that the grand jury found probable cause to believe respondent had committed mail fraud -- the crime for which he was eventually convicted. And respondent clearly had sufficient notice of the charges against him to permit him to prepare his defense, since everything the government proved at trial was within teh scope of the charge in the indictment. /7/ The standard the court of appeals applied in this case -- whether there was some possibility that the grand jury might have chosen not to indict if it had considered a narrower scheme -- seriously distorts and confuses the respective functions of the grand jury and the petit jury. Here the petit jury found that the evidence established beyond a reasonable doubt that respondent committed mail fraud. Once the petit jury made that finding, the grand jury's decision whether to indict became largely irrelevant. /8/ But 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 (apparently 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 is no reason to doubt that probable cause to charge the respondent with the crime of which he was convicted must have been demonstrated. The court of appeals' holding elevates the role of the grand jury far beyond its normal functions of screening and notice. In effect, the court has given the grand jury a status equal to that of the petit jury. Under the decision below, the government must shift its primary focus to the grand jury and must be prepared to prove beyond a reasonable doubt every allegation made at that early stage in order to ensure that a later conviction by the petit jury will survive. That is surely an instance of the tail wagging the dog. 3. The expansive principle advanced in Mastelotto and applied in this case creates enormous practical problems for the government. The court of appeals' test -- whether there is some possibility that the grand jury might have chosen not to indict if it had considered only the narrower scheme proved at trial -- amounts to a sword of Damocles that threatens virtually every fraud prosecution in the Ninth Circuit. Many fraud cases involve allegations of complex schemes with numerous features; as we explained above, the government, for any number of practical reasons, often will be unable to prove at trial each and every allegation contained in the indictment, even though the evidence it does present is clearly sufficient to prove that the defendant violated the law. No matter how strong the evidence at trial, it would be open to the court to dismiss the conviction if it could speculate that the grand jury might have chosen not to indict on the basis of the narrower scheme. Indeed, this case demonstrates that the principle is not confined to complex cases. The scheme alleged here was a simple one, and its central feature -- filing of an inflated insurance claim -- was proved at trial. It strains credulity to suggest that the grand jury would not have indicted based on a scheme involving respondent's gross inflation of the amount of copper he had on hand, when that action alone was both criminal and by itself sufficient to account for virtually the entire loss suffered by the victim. Nevertheless, because the government failed to present evidence addressed to one secondary allegation -- consent to the burglary -- the court proceeded to vacate respondent's convictions. The potential for harm is not limited to fraud cases. Indictments in many sorts of cases may include multiple allegations, not all of which are necessary to prove the crime charged. For example, a conspiracy indictment may list 30 overt acts, or a racketeering indictment may list 12 acts of racketeering. If the government were able to prove only 25 of the overt acts, or ten of the racketeering acts, a court following the decision below could reverse the convictions on the ground that it was not certain that the grand jury would have decided to indict if it had considered the more limited list of acts proved at trial. Indeed, the court's logic would appear virtually to compel reversal of a conviction on a lesser included offense where the evidence on the greater offense charged is defective. Our concern about the potential impact of the decision below is not purely speculative. A district court in the Northern District of California recently terminated an exceptionally important fraud prosecution on the authority of Mastelotto and this case. In United States v. Dorfman, No. CR-83-0008-WHO (N.D.Cal. Mar. 27, 1984), the trial court granted a mid-trial motion for judgments of acquittal on 12 substantive fraud counts and one conspiracy count, on the ground that a "fatal variance" resulted when the government proved some, but not all, of the objects of the fraudulent scheme alleged in the indictment. /9/ Other defendants, both in the Ninth Circuit and elsewhere, are raising claims based on Mastelotto and the decision below. See, e.g., United States v. Gaultier, 727 F.2d 711, 715 n.6 (8th Cir. 1984). /10/ We believe it is only a matter of time before there are other "acquittals" based on the rule the court of appeals applied in this case. The practical difficulties created by the decision below are magnified by the nature of the remedy suggested by the decision. Because the court of appeals characterizes narrowing of the charges as a failure of proof, courts may be prompted to enter judgments of "acquittal" in cases like this one, as did the trial court in Dorfman. Defendants undoubtedly will contend that double jeopardy principles prevent reindictment and retrial in such cases; indeed, we are advised that the defendants in Dorfman have moved to dismiss the government's appeal in that case on double jeopardy grounds. While we believe the "error" in such cases is more akin to a defect in the indictment than to a failure of proof, so that retrial on a new and more limited indictment would not be barred, we cannot be assured that our contention will prevail. /11/ Even if we prevailed on the double jeopardy issue, the decision below would cause significant practical problems. The government would be faced with reindicting and retrying defendants again and again until it succeeded in achieving the correct match between the description in the indictment and the proof at trial. There is no ready solution that would allow the government to escape these practical consequences. It will rarely be possible to present precisely the same evidence to the grand jury that is eventually introduced at trail. As a result, the government would be forced to attempt to confine the descriptions in the indictment to those allegations it believes with some certainty that it could prove beyond a reasonable doubt at trial. Such bare bones pleading would provide less notice to the accused of the nature of the charges against him and might prevent the government from introducing at trial clearly relevant evidence that was obtained after indictment. Alternatively, the government might attempt to draft an indictment 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, and fraud based on a different scheme involving consent to burglary). That sort of cumbersome and multiplicitous pleading surely would be subject to attack by defendants and in any event would be an undesireable practice. In short, the decision below creates a dilemma that is virtually certain to undermine significantly the government's ability to prosecute effectively in many important criminal cases. CONCLUSION The petition for a writ of certiorari should be granted. 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 APRIL 1984 /1/ Paragraphs one through seven of count one of the indictment read as follows: 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 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. /2/ It appears that in Salinger the defendant himself requested at trial that the unproved plans be withdrawn from the jury. However, there is no indication that the Court relied on any theory of waiver in concluding that the trial court's action did not violate the Fifth Amendment. /3/ Indeed, it is often thought preferable to draft an indictment conjunctively, since disjunctive pleading (i.e., the object of the scheme was A or B or C) might be interpreted as reflecting the grand jury's inability to agree. See, e.g., Mellor v. United States, 160 F.2d at 760-761. /4/ See also, e.g., Crain v. United States, 162 U.S. 625, 634-636 (1896); United States v. Toney, 598 F.2d 1349, 1355-1357 (5th Cir. 1979), cert. denied, 444 U.S. 1033 (1980); 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 & Instructions Section 54.18 (3d ed. 1977). And see 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."). /5/ The opinion below seems to suggest that the issue here is simply one of the sufficiency of the evidence -- i.e., did the government succeed in establishing the scheme it set out to prove? But the legal principle at stake here has nothing to do with the legal sufficiency of the evidence to prove mail fraud. To the contrary, the holding is a broad one that ultimately rests on the dictum in Mastelotto, which in turn was premised on the court's understanding of the Fifth Amendment right to be tried on an indictment by a grand jury. The court in Mastelotto purported to distinguish some of the cases we have cited here on various grounds. We believe, however, that the holding in this case would necessarily compel a different result from that reached in cases like Salinger and the others we have cited. In any of those cases the convictions could have been reversed on the ground cited here -- that the grand jury might have chosen not to indict if it had had narrower evidence before it. /6/ 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 764. There is clearly no threat to this function in cases in which the proof at trial falls entirely within the scope of what is alleged in the indictment. /7/ There might conceivably be cases in which the 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 impaired. In such cases it normally should be a sufficient remedy to grant a continuance to allow the defendant to investigate further the areas on which the government has focused at trial. It seems clear that respondent did not suffer prejudice from narrowing of the scheme charged in this case. Respondent's inflation of the amount of 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 against which his scheme was directed. Respondent therefore was on notice that he should address that issue at trial. /8/ Indeed, if, as is settled (Costello v. United States, 350 U.S. at 363), an indictment by a competent and unbiased grand jury may not be challenged on the basis of the nature or sufficiency of the evidence on which it is based, it is hard to understand why an otherwise valid conviction can be defeated by speculation about how the grand jury would have reacted to the evidence adduced at the trial. /9/ The indictment in Dorfman charged that defendants' objectives included, inter alia, defrauding various union local benefit plans. The court concluded that the government had not presented sufficient proof as to some of the benefit plans. We are lodging with the Clerk of the Court and providing to respondent's counsel copies of the district court's order granting judgment of acquittal in Dorfman. /10/ See also United States v. Fischbach & Moore, Inc., No. CR83-169C (W.D. Wash.) (transferred to District of Montana for trial), in which electrical contractors were acquitted on Sherman Act bid rigging charges in January 1984 following the trial court's instruction that if the jury found "a conspiracy involving only one or two of these electrical contracts, but not all three contracts, then you must find the defendants not guilty." The defendants cited Mastelotto in support of the giving of such an instruction. Cf. United States v. Von Stoll, 726 F.2d 584, 590 n.1 (9th Cir. 1984) (Poole, J., concurring and dissenting) (characterizing the reasoning of Mastelotto and the decision below as "unsound"). /11/ It is unclear in the instant case whether the court of appeals' decision is meant to leave room for the government to secure a new indictment describing respondent's scheme more narrowly and to place respondent on trial to prove again the mail fraud he was found to have committed, by legally sufficient evidence, at his original trial. APPENDIX