[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 1, 2009
No. 08-13289 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00003-CR-1-JTC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL W. WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2009)
Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:
Defendant-Appellant Michael White appeals his conviction for operating a
chop shop in violation of 18 U.S.C. § 2322 and several related crimes. White
contends that (1) the district court erred by denying a mistrial after an investigator
arguably introduced character evidence during testimony; (2) a one-character
difference in a Vehicle Identification Number (VIN) listed in the indictment and
the proof offered at trial on that vehicle constituted a constructive amendment or
material variance; and (3) the district court erred in applying a three-level
enhancement to his base sentence. No reversible error has been shown; we affirm.
First, White contends that a statement by the lead investigator during trial
created an impermissible character inference and warranted a mistrial. On direct
examination, the lead investigator in the case testified that White had admitted that
“Kevin Crews had got him back or got him into the stealing vehicles and switching
them out and stuff like that.” White asserts that the jury may have interpreted this
statement as a reference to past misconduct; the government maintains that the
statement was merely a slip of the tongue that was too ambiguous to be prejudicial
and, in any event, was immediately corrected. We will not disturb a district court’s
evidentiary determinations absent a clear abuse of discretion; whether or not to
grant a mistrial lies within the sound discretion of the district judge. United States
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v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997). White has failed to demonstrate
that this fleeting and immediately corrected statement was prejudicial, especially
given the absence of argument and of other evidence suggesting that White
engaged in prior misconduct. To deny a mistrial was no abuse of the district
court’s considerable discretion.
Second, the indictment charging White incorrectly stated one of the
seventeen characters in a VIN as a “W” instead of an “N.” White contends that
this typo resulted in an impermissible variance or a constructive amendment.
[A]n amendment of the indictment occurs when the charging terms of the
indictment are altered, either literally or in effect by the prosecutor or court
after the grand jury has last passed upon them. A variance occurs when the
charging terms of the indictment are left unaltered, but the evidence offered
at trial proves facts materially different from those alleged in the indictment.
United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990) (quoting United States
v. Salinas, 654 F.2d 319, 324 (5th Cir. 1981)) .
[T]he proper distinction between an amendment and a variance is that an
amendment occurs when the essential elements of the offense contained in
the indictment are altered to broaden the possible bases for conviction
beyond what is contained in the indictment. A variance occurs when the
facts proved at trial deviate from the facts contained in the indictment but the
essential elements of the offense are the same.
Id. at 634.
We will only discuss the variance issue because White acknowledged that it
is his better argument, although we have considered the constructive amendment
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claim and reject it. The government concedes the existence of a variance. For a
variance to result in reversal, the variance must be material and the defendant must
have suffered substantial prejudice as a result. United States v. Caporale, 806 F.2d
1487, 1499 (11th Cir. 1986). In circumstances such as those here, substantial
prejudice occurs when the defendant is unfairly surprised and had an inadequate
opportunity to prepare his defense. Id. at 1500-01. Nothing in the record suggests
that White’s ability to prepare his defense was impaired. White was not unfairly
surprised because, as noted by the district court, the pretrial discovery materials set
out the correct VIN.
Last, White contends that his sentence was improperly enhanced. While a
district court’s application of the Sentencing Guidelines is reviewed de novo, its
factual determinations are reviewed for clear error. United States v. Yeager, 331
F.3d 1216, 1224 (11th Cir. 2003). The Sentencing Guidelines allow for a three-
level enhancement if the “defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or more participants or
was otherwise extensive.” U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.1(b)
(2007). The defendant need only supervise a single participant; and for the
purpose of determining the total number of participants, all criminally culpable
people (even if not convinced), including the defendant, are counted. See United
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States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994). The record provides
adequate support for the district court’s conclusion that the criminal activity both
involved at least five people and was otherwise extensive.
AFFIRMED.
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